Summary
recognizing that school had legal duty to warn students about or protect students against risk of serious insect-borne disease when organizing trip abroad
Summary of this case from Bloomfield Health Care Ctr. of Conn., LLC v. DoyonOpinion
SC 19525
08-11-2017
Orson D. MUNN III, et. al. v. The HOTCHKISS SCHOOL
Antonio Ponvert III, with whom was Alinor C. Sterling, for the appellant (defendant). Wesley W. Horton, with whom were Karen L. Dowd, Jeffrey R. Babbin and, on the brief, Kenneth J. Bartschi and Aaron S. Bayer, for the appellees (plaintiffs). Renee W. Dwyer and Brian M. Paice filed a brief for American Camp Association, Inc., et al. as amici curiae. Frank J. Silvestri, Jr., filed a brief for National Association of Independent Schools et al. as amici curiae.
Antonio Ponvert III, with whom was Alinor C. Sterling, for the appellant (defendant).
Wesley W. Horton, with whom were Karen L. Dowd, Jeffrey R. Babbin and, on the brief, Kenneth J. Bartschi and Aaron S. Bayer, for the appellees (plaintiffs).
Renee W. Dwyer and Brian M. Paice filed a brief for American Camp Association, Inc., et al. as amici curiae.
Frank J. Silvestri, Jr., filed a brief for National Association of Independent Schools et al. as amici curiae.
Rogers, C. J., and Palmer, Eveleigh, McDonald and Espinosa, Js.
ROGERS, C. J.The issues in this case, which comes to us on certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51–199b(d), are: (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 a damages award of approximately $41.5 million, $31.5 million of which are noneconomic damages, warrant a remittitur? We answer the first question in the affirmative and the second question in the negative.
General Statutes § 51–199b(d) provides: "The Supreme Court may answer a question of law certified to it by a court of the United States or by the highest court of another state or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state."
The following facts, which find support in the record certified by the Second Circuit, and procedural history are relevant to our resolution of the certified issues. The defendant, The Hotchkiss School, is a private boarding school located in Lakeville. At the time of the events underlying this appeal, the plaintiff, Cara L. Munn, was a student there. In June and July of 2007, the plaintiff, who recently had turned fifteen years old and completed her freshman year, joined other students and faculty of the school on an educational trip to China. In July, she contracted tick-borne encephalitis, a viral infectious disease that attacks the central nervous system, as a result of being bitten by an infected tick during a hike on Mount Panshan, which is located in a forested area approximately sixty miles from Tianjin, a city in northeastern China. As a result of contracting tick-borne encephalitis, the plaintiff suffered permanent brain damage that has impacted severely the course of her life.
For a more complete discussion of the underlying facts, see Munn v. Hotchkiss School, 24 F.Supp.3d 155 (D. Conn. 2014).
Cara L. Munn's parents, Orson D. Munn III and Christine Munn, also were named as plaintiffs in this matter due to their incurrence of substantial expenses, on her behalf, which they sought to recoup. For simplicity, we refer hereinafter to Cara L. Munn alone as the plaintiff.
In 2009, the plaintiff filed a diversity action in the United States District Court for the District of Connecticut, alleging that the defendant had been negligent by, inter alia, failing to warn students and their parents of the risk of exposure to insect-borne diseases and failing to ensure that the students took protective measures against insect bites prior to visiting Mount Panshan. The case was tried to a jury in March, 2013. The jury returned a verdict in the plaintiff's favor, and it awarded her $10.25 million in economic damages and $31.5 million in noneconomic damages. The award was then reduced pursuant to a stipulated collateral source reduction.
The defendant thereafter challenged the verdict, moving for judgment as a matter of law; see Fed. R. Civ. P. 50(b) ; or, alternatively, for a new trial. See Fed. R. Civ. P. 59. The District Court rejected each of the claims the defendant made in support of those motions, including that the plaintiff's infection with tick-borne encephalitis was unforeseeable, that public policy precluded the imposition of a legal duty on the defendant and that the noneconomic portion of the damages award was excessive as a matter of law. The defendant appealed from the District Court's judgment to the Second Circuit Court of Appeals, challenging its determinations on each of those claims. The Second Circuit agreed with the plaintiff that there was sufficient evidence presented at trial for the jury to find that her illness was foreseeable; Munn v. Hotchkiss School , 795 F.3d 324, 330 (2d Cir. 2015) ; but, finding insufficient guidance in existing Connecticut law, certified to this court the issues of whether Connecticut public policy supports the imposition of a duty on a school to warn about or to protect against the foreseeable risk of a serious insect-borne disease when organizing a trip abroad and, if so, whether the jury's damages award, particularly the noneconomic portion, warranted a remittitur. Id., at 337.I
We first consider whether Connecticut public policy supports the imposition of a duty on a school to warn about or protect against the foreseeable risk of a serious insect-borne disease when it organizes a trip abroad. Because it is widely recognized that schools generally are obligated to exercise reasonable care to protect students in their charge from foreseeable dangers, and there is no compelling reason to create an exception for foreseeable serious insect-borne diseases, we conclude that the imposition of such a duty is not contrary to Connecticut public policy and, accordingly, answer the first certified question in the affirmative.
The following additional facts that the jury reasonably could have found in support of its verdict are relevant. In the spring of 2007, Jean Yu, the director of the defendant's Chinese language and culture program and the leader of the trip, and David Thompson, the director of the defendant's international programs, provided the students who would be traveling to China with information about the trip. A list of places that the students would be visiting included "Mount Pan" as part of a Tianjin city tour. A subsequently distributed itinerary again listed "Mount Pan" as part of a city tour. The itinerary did not describe "Mount Pan" or indicate that the students would be visiting a forested area during the trip, which otherwise took place in urban or suburban settings.The students and parents also received some written medical advice for the trip in an e-mail including a hyperlink to a United States Centers for Disease Control and Prevention (CDC) website that erroneously directed users to the page addressing Central America, rather than the one addressing China. The same document, as well as a generic predeparture manual produced by Thompson's office, indicated that the defendant's infirmary could serve as a travel clinic, although the infirmary was not qualified to provide travel related medical advice. Finally, a packing list provided to the students going on the China trip included "[b]ug spray or lotion (or bug spray wipes)," but that item was listed only under the heading "Miscellaneous Items," along with other, seemingly optional things like "[t]ravel umbrella" and "[m]usical instrument." None of the foregoing documents provided any warning about insect-borne illnesses, although other health and medical issues, such as immunizations, prescriptions and sexually transmitted diseases, were discussed.
Throughout the record, Mount Panshan is referred to variously as "Mount Pan," "Mt. Pan" and "Panshan mountain."
Prior to the trip, Thompson viewed the page on the CDC website directed at travelers to China. In its discussion of diseases found in the area, the page stated that "[tick borne] encephalitis occurs in forested regions in northeastern China and in South Korea. Protecting yourself against insect bites (see below) will help to prevent these diseases." A section that followed, captioned "Prevent Insect Bites," instructed travelers to use insect repellent containing the chemical compound DEET and to wear long sleeves and long pants when outdoors. At trial, Thompson admitted seeing this information at the time of the trip, and, although he initially contended to the contrary, he subsequently agreed that Tianjin is in northeastern China. Other travel information sources generally available at the time also reported that tick-borne encephalitis was present in northeastern China. See footnote 7 of this opinion. No one on behalf of the defendant, including Thompson, warned students or their parents about the presence of tick-borne encephalitisin forested regions of northeastern China or the need to protect against it.
A printout of the page addressing China on the CDC website, quoted previously, was introduced as a defense exhibit at trial. On appeal to the Second Circuit, the defendant argued that the jury could not rely on it as evidence of foreseeability because it is dated August 1, 2007, i.e., just after the school trip. That court rejected the defendant's attempt to discredit its own exhibit in favor of another CDC advisory dated May 23, 2007, which did not mention tick-borne encephalitis, because the May advisory was not part of the trial record. Additionally, the court reasoned that, "while the August 1, 2007 advisory postdates the trip, it is possible that a similar advisory was on the website before, which would explain Thompson's testimony about seeing the advisory. Neither party presented evidence about what was posted on the CDC website when the trip actually occurred, and we will not disturb the jury's assessment of the evidence and its finding of reasonable foreseeability."
Before this court, the defendant again suggests that its own trial exhibit, as well as Thompson's testimony that he had seen the contents of that exhibit prior to the trip, is not reliable evidence. Because a determination of the competence of the evidence in this case is well beyond the scope of the certified questions, we must accept the conclusion of the Second Circuit that the jury properly relied upon that evidence.
The students visited Mount Panshan about two weeks into the trip as part of a weekend excursion outside of Tianjin's city center. Evidence submitted at trial demonstrated that Mount Panshan is a forested peak adjacent to other smaller foothills, surrounded by an exurban landscape. No one warned the students to wear clothing that would protect them against insect bites or to apply insect repellent before the trek up the mountain. The group ascended Mount Panshan together on a paved pathway, dressed in shorts and T-shirts or tank tops, but split up for the descent. 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. On the way down, the plaintiff and her cohorts left the paved pathway and became lost, walking on narrow dirt trails, among trees and through brush before eventually rejoining the rest of the group. Along the way, the plaintiff received many insect bites and soon developed an itchy welt. Ten days later, she began to experience the first symptoms of tick-borne encephalitis.
As the District Court explained, an exurban landscape is "a traditionally rural community with growing housing density created by commuters to the cities."
We turn to the first certified question, which concerns the defendant's duty to the plaintiff. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that [it] is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable .... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , 315 Conn. 320, 328–29, 107 A.3d 381 (2015).
We pause to emphasize that we are called upon to undertake the second determination only. The jury in this case determined, on the evidence presented at trial, that the plaintiff's infection with tick-borne encephalitis, or harm of that general nature, was foreseeable, and both the District Court and the Second Circuit have upheld that finding. See Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 331–32, 87 A.3d 546 (2014) (unless fair and reasonable minds could reach only one conclusion, foreseeability is question of fact for jury). Specifically, in addition to the page addressing China on the CDC website that discussed tick-borne encephalitis in forested areas in northeastern China, which Thompson acknowledged seeing in advance of the trip, there also were in evidence: a CDC page directed at east Asia generally, dated April 23, 2007, which warned of the risk of several other insect-borne diseases; a British health advisory that warned of tick-borne encephalitis"in forested regions of China and Japan"; and expert testimony, as summarized by the District Court, that, "according to travel medicine reports routinely consulted by doctors and commercial trip planners in 2007, rural China was an endemic region for [tick-borne encephalitis ], Japanese encephalitis, and Lyme disease."
Throughout its brief, the defendant emphasizes the remoteness of the risk of contracting tick-borne encephalitis. Although that factor is relevant to the duty analysis, it mainly informs the issue of foreseeability. We agree with the District Court that the public policy aspect of the duty analysis does not afford the defendant a new opportunity to relitigate the issue of foreseeability. See 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 7, comment (j), pp. 82–83 (2010) (disapproving of use of foreseeability in judicial determinations of whether, for policy reasons, no duty should exist); see also A.W. v.Lancaster County School District 0001, 280 Neb. 205, 212–16, 784 N.W.2d 907 (2010) (explaining why courts should not consider factual issue of foreseeability when making determinations of legal duty).
The second prong of the analysis is necessary because "[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 [that] 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 defendant's responsibility should extend to such results. ... [I]n considering whether public policy suggests the imposition of a duty, we ... consider the following four factors: (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. ... [This] totality of the circumstances rule ... is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." (Citations omitted; internal quotation marks omitted.) Id., at 336–37, 107 A.3d 381.
Before turning to the public policy analysis, we pause to examine the broader legal framework that encompasses the specific certified issue. Although the law of negligence typically does not impose a duty on one party to act affirmatively in furtherance of the protection of another, there are certain exceptions to that general proposition. See generally 2 Restatement (Third), Torts, Liability for Physical and Emotional Harm §§ 37 through 44 (2012). One exception applies when there is a "special relationship" between those parties; id., § 40, pp. 39–40; and one example of such a special relationship that has received wide recognition, along with a concomitant duty to protect, is the relationship between schools and their students. See id., § 40(b)(5), p. 40; see also, e.g, Todd M. v. Richard L. , 44 Conn.Supp. 527, 543, 696 A.2d 1063 (1995) ; Boisson v. Arizona Board of Regents , 236 Ariz. 619, 622–23, 343 P.3d 931 (App. 2015), review denied, Arizona Supreme Court, Docket No. CV–15–0121 (December 1, 2015); Dailey v. Los Angeles Unified School District , 2 Cal.3d 741, 747, 470 P.2d 360, 87 Cal.Rptr. 376 (1970) ; Hecksher v. Fairwinds Baptist Church, Inc. , 115 A.3d 1187, 1206 (Del. 2015) ; District of Columbia v. Royal , 465 A.2d 367, 369 (D.C. 1983) ; Rupp v. Bryant , 417 So.2d 658, 666 (Fla. 1982) ; Doe Parents No. 1 v. State Dept. of Education , 100 Hawai'i 34, 74, 58 P.3d 545 (2002) ; Bellman v. Cedar Falls , 617 N.W.2d 11, 21 (Iowa 2000) ; Beshears v. Unified School District No. 305 , 261 Kan. 555, 563, 930 P.2d 1376 (1997) ; Williams v. Kentucky Dept. of Education , 113 S.W.3d 145, 148 (Ky. 2003) ; Prier v. Horace Mann Ins. Co. , 351 So.2d 265, 268 (La. App.), cert. denied, 352 So.2d 1042, 1045 (La. 1977) ; Eisel v. Board of Education , 324 Md. 376, 384, 597 A.2d 447 (1991) ; Brown v. Knight , 362 Mass. 350, 352, 285 N.E.2d 790 (1972) ; Henderson v. Simpson County Public School District , 847 So.2d 856, 857 (Miss. 2003) ; Graham v. Montana State University , 235 Mont. 284, 289, 767 P.2d 301 (1988) ; A.W. v. Lancaster County School District 0001, 280 Neb. 205, 216, 784 N.W.2d 907 (2010) ; Marquay v. Eno , 139 N.H. 708, 717, 662 A.2d 272 (1995) ; Mirand v. New York , 84 N.Y.2d 44, 49, 637 N.E.2d 263, 614 N.Y.S.2d 372 (1994) ; Fazzolari v. Portland School District No. 1J , 303 Or. 1, 19, 734 P.2d 1326 (1987) ; Christensen v. Royal School District No. 160 , 156 Wash.2d 62, 70, 124 P.3d 283 (2005) ; cf. General Statutes § 10–220(a)(4) ("[e]ach local or regional board of education ... shall provide an appropriate learning environment for all its students which includes ... a safe school setting").
As to the rationale for imposing an affirmative duty to protect in this context, "[t]he relationship between a school and its students parallels aspects of several other special relationships—it is a custodian of students, it is a land possessor who opens [its] premises to a significant public population, and it acts partially in the place of parents." (Internal quotation marks omitted.) Monroe v. Basis School, Inc. , 234 Ariz. 155, 157, 318 P.3d 871 (App. 2014). As a general matter, "[o]ne ... who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under [a duty to protect the other against unreasonable risk of physical harm]." 2 Restatement (Second), Torts § 314A (4), p. 118 (1965). At heart, "the duty [to protect] derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians ...." Mirand v. New York , supra, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see also 2 Restatement (Second), supra, § 320, comment (b), p. 131 ("[A] child while in school is deprived of the protection of his parents or guardian. Therefore, the actor who takes custody ... of a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him."). "[T]he scope of the duty imposed by the student-school relationship is not limitless.... [T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school's control." (Citation omitted; internal quotation marks omitted.) Boisson v. Arizona Board of Regents , supra, 236 Ariz. at 623, 343 P.3d 931 ; see also Strycharz v. Cady , 323 Conn. 548, 579, 148 A.3d 1011 (2016) (rejecting, in public school immunity context, per se rule that would exempt school officials from liability for harm sustained during off campus school activities, such as educational field trips, and noting that "[p]arents who have relinquished control and custody of their children to the school rightly expect that the school will exercise reasonable care, as long as their children remain under the school's custody and control"); Concepcion v. Archdiocese of Miami , 693 So.2d 1103, 1104 (Fla. App. 1997) ("a duty of supervision has been found for student injuries occurring [on school] premises as well as [off school] premises for school-related activities"). Outside of on campus occurrences during the regular school day, courts have found the duty applicable in such settings as school bus rides; see Todd M. v. Richard L. , supra, 44 Conn.Supp. at 527, 543, 696 A.2d 1063 ; Doe v. DeSoto Parish School Board , 907 So.2d 275, 283 (La. App. 2005), cert. denied, 924 So.2d 167 (La. 2006) ; athletic events; see Limones v. School District , 161 So.3d 384, 391 (Fla. 2015) ; Wagenblast v. Odessa School District No. 105-157-166J , 110 Wash.2d 845, 856, 758 P.2d 968 (1988) ; field trips; see Bellman v. Cedar Falls , supra, 617 N.W.2d at 15, 17 ; off campus picnics; see Brown v. Knight , supra, 362 Mass. at 350, 352, 285 N.E.2d 790 ; and off campus "[w]orkday" activities; Travis v. Bohannon , 128 Wash.App. 231, 234–35, 238–39, 115 P.3d 342 (2005) ; but not applicable to off campus occurrences that are unconnected with any school programming. See, e.g., Boisson v. Arizona Board of Regents , supra, at 621, 624–25, 343 P.3d 931 (no duty to supervise college students' independently organized excursion to Mount Everest during study abroad trip to China); Concepcion v. Archdiocese of Miami , supra, at 1105 (no duty to prevent after school fight that occurred on public sidewalk outside of school gates); Anderson v. Shaughnessy , 526 N.W.2d 625, 626 (Minn. 1995) (no duty to prevent harm once student disembarked school bus safely at scheduled destination).
This court has recognized that children outside of their parents' supervision require special protection. See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 106, 708 A.2d 937 (1998) (school officials are not immune from liability to child injured in unsupervised hallway), overruled in part by Haynes v. Middletown, 314 Conn. 303, 316, 101 A.3d 249 (2014). In determining duty, we also have recognized the limited capacity of children to fully appreciate risks. See Ruiz v. Victory Properties, LLC, supra, 315 Conn. at 333, 107 A.3d 381 ("[a]s to the care required of others in relation to children, the ... propensity of children [to disregard dangerous conditions] has been taken into consideration in evaluating the negligence of these others" [internal quotation marks omitted] ).
The potential harms to be protected against vary widely. They have included physical and sexual assaults by strangers, other students or school employees; see Dailey v. Los Angeles Unified School District , supra, 2 Cal.3d at 745–46, 87 Cal.Rptr. 376, 470 P.2d 360 ; Rupp v. Bryant , supra, 417 So.2d at 660 ; Doe Parents No. 1 v. State Dept. of Education , supra, 100 Hawai'i at 42, 58 P.3d 545 ; Doe v. DeSoto Parish School Board , supra, 907 So.2d at 277 ; A.W. v. Lancaster County School District 0001 , supra, 280 Neb. at 206, 784 N.W.2d 907 ; Marquay v. Eno , supra, 139 N.H. at 711, 662 A.2d 272 ; Mirand v. New York , supra, 84 N.Y.2d at 47, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Fazzolari v. Portland School District No. 1J , supra, 303 Or. at 3, 734 P.2d 1326 ; student suicide; Eisel v. Board of Education , supra, 324 Md. at 377, 597 A.2d 447 ; accidents caused by students' drunk driving; Williams v. Kentucky Dept. of Education , supra, 113 S.W.3d at 147 ; physical hazards; see District of Columbia v. Royal , supra, 465 A.2d at 368 (partially disassembled fence); Bellman v. Cedar Falls , supra, 617 N.W.2d at 15 (inadequately supervised golf cart); Prier v. Horace Mann Ins. Co. , supra, 351 So.2d at 267 (trash burner); Brown v. Knight , supra, 362 Mass. at 350, 285 N.E.2d 790 (open fireplace); Travis v. Bohannon , supra, 128 Wash.App. at 235–36, 115 P.3d 342 (hydraulic wood splitter); and aggravation of injuries suffered in a spontaneous medical emergency during a soccer game. Limones v. School District , supra, 161 So.3d at 387.
We cite these examples merely to demonstrate the range of circumstances in which the duty may apply, and not to suggest that we necessarily would extend the duty to all of the circumstances enumerated.
Regarding the scope of the duty, standard negligence principles apply, within the context of the facts and circumstances of the particular case. "While [a] school is not an insurer of the safety of its students, it is obligated to exercise such care over students in its charge that a parent of ordinary prudence would exercise under comparable circumstances ...." (Citation omitted; internal quotation marks omitted.) David v. New York , 40 A.D.3d 572, 573, 835 N.Y.S.2d 377 (2007). The duty a school owes "to students and their parents is, on a general level, a duty to take whatever precautions are necessary reasonably to ensure the safety and welfare of the children entrusted to its custody and control against harm that the [school] anticipates, or reasonably should anticipate." Doe Parents No. 1 v. State Dept. of Education , supra, 100 Hawai'i at 80, 58 P.3d 545. What the duty quintessentially entails is "to exercise reasonable care in ensuring that students are educated in a safe environment free from any unreasonable risks of harm." Id., at 81, 58 P.3d 545 ; see also Henderson v. Simpson County Public School District , supra, 847 So.2d at 857 ("schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students"). The degree of care required will vary depending on the particular risk at issue, the ages of the students in the school's custody and all of the attendant circumstances. Dailey v. Los Angeles Unified School District , supra, 2 Cal.3d at 748, 87 Cal.Rptr. 376, 470 P.2d 360 ; Doe v. DeSoto Parish School Board , supra, 907 So.2d at 281 ; Prier v. Horace Mann. Ins. Co. , supra, 351 So.2d at 268 ; see also Haynes v. Middletown , 314 Conn. 303, 314–15, 101 A.3d 249 (2014) (recognizing that school's duty to protect extends to high school students).
One court has observed that, although high school students may require less rigorous and intrusive methods of supervision than younger children, "adolescent high school students are not adults and should not be expected to exhibit that degree of discretion, judgment, and concern for the safety of themselves and others which we associate with full maturity." Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at 748, 87 Cal.Rptr. 376, 470 P.2d 360.
In light of the foregoing authorities, it is beyond dispute that, as a general matter, 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. The question we must consider, then, is whether there is something unique and/or compelling about foreseeable insect-borne diseases that should excuse schools that are organizing educational trips abroad from exercising reasonable care to minimize the possibility that the minors entrusted to their custody will contract such diseases. Stated otherwise, does Connecticut public policy mandate that, when it comes to foreseeable insect-borne diseases, there should be an exception to the general rule that schools must refrain from negligently exposing minor students, whom they have agreed to supervise in the absence of their parents, to foreseeable dangers? To answer that question, we begin by considering the first public policy factor, the normal expectations of the participants in an educational trip abroad.
As this case amply demonstrates, insect-borne diseases can pose significant threats to human health. When insect-borne diseases present serious risks, they become the subject of government warnings and media attention. The reason for the provision of such information is clear: people are interested in having it. When a particular disease is brought to an individual's attention, he or she can learn about the disease's prevalence, the areas in which the disease is endemic, whether there is a vaccine available and, if not, what other measures may be effective to prevent it. Furthermore, he or she can become aware of the symptoms of the disease, the damage to one's health that the disease might cause, and whether and how the disease, if contracted, may be treated. With all of this information in hand, the individual can make educated choices about whether to travel to an area where the disease is present and, if so, what protective measures should be taken, in light of the individual's particular tolerance to risk.
See, e.g., Centers for Disease Control and Prevention, "African Tick–Bite Fever," available at https://wwwnc.cdc.gov/travel/diseases/african-tick-bite-fever (last visited August 7, 2017) (warning travelers to sub-Saharan Africa and West Indies of African tick-bite fever), "African Trypanosomiasis (African Sleeping Sickness )," available at https://wwwnc.cdc.gov/travel/diseases/african-sleeping-sickness-african-trypansosomiasis (last visited August 7, 2017) (warning travelers to sub-Saharan Africa of African trypanosomiasis spread by tsetse flies), "Chagas Disease (American Trypanosomiasis )," available at https://wwwnc.cdc.gov/travel/diseases/chagas-disease-american-trypanosomiasis (last visited August 7, 2017) (warning travelers to Mexico, Central America and South America of Chagas disease spread by triatomine bugs), "Chikungunya," available at https://wwwnc.cdc.gov/travel/diseases/chikungunya (last visited August 7, 2017) (warning travelers to Africa, Asia, parts of Central and South America, and islands in Indian Ocean, western and South Pacific, and Caribbean of chikungunya spread by mosquitoes), "Dengue," available at https://wwwnc.cdc.gov/travel/diseases/ dengue (last visited August 7, 2017) (warning travelers to tropical and sub-tropical regions of dengue spread by mosquitoes); "Japanese Encephalitis," available at https://wwwnc.cdc.gov/travel/diseases/japanese-encephalitis (last visited August 7, 2017) (warning travelers to certain areas of Asia of Japanese encephalitis spread by mosquitoes), "Malaria," available at https://wwwnc.cdc.gov/travel/diseases/malaria (last visited August 7, 2017) (warning travelers to Africa, Central and South America, parts of Caribbean, Asia, eastern Europe and south Pacific of malaria spread by mosquitoes), "Murray Valley Encephalitis Virus," available at https://wwwnc.cdc.gov/travel/diseases/murray-valley-encephalitis-virus (last visited August 7, 2017) (warning travelers to New Guinea and certain areas of Australia of Murray Valley encephalitis spread by mosquitoes), "Plague," available at https://wwwnc.cdc.gov/travel/diseases/plague-bubonic-pneumonic-septicemic (last visited August 7, 2017) (warning travelers to Africa, central Asia, Indian subcontinent, northern South America and parts of southwestern United States of three types plague spread by fleas), "Rift Valley Fever," available at https://wwwnc.cdc.gov/travel/diseases/rift-river-valley (last visited August 7, 2017) (warning travelers to Africa of Rift Valley fever spread by mosquitoes), "Ross River Virus Disease," available at https://wwwnc.cdc.gov/travel/diseases/ross-river-virus-disease (last visited August 7, 2017) (warning travelers to Australia and Papua New Guinea of Ross River virus disease spread by mosquitoes), "Tick-borne Encephalitis," available at https://wwwnc.cdc.gov/travel/diseases/tickborne-encephalitis (last visited August 7, 2017) (warning travelers to Europe and Asia of tick-borne encephalitis ), "West Nile Virus," available at https://wwwnc.cdc.gov/travel/diseases/west-nile-virus (last visited August 7, 2017) (warning travelers to Africa, Europe, Middle East, portions of Asia, and North America of West Nile virus spread by mosquitoes), "Yellow Fever," available at https://wwwnc.cdc.gov/travel/diseases/yellow-fever (last visited August 7, 2017) (warning travelers to certain parts of South America and Africa of yellow fever spread by mosquitoes), and "Zika," available at https://wwwnc.cdc.gov/travel/diseases/zika (last visited August 7, 2017) (generally warning of Zika spread by mosquitoes). In addition to providing a warning, all of the CDC notices contain a section detailing what travelers can do to prevent each disease.
See, e.g., L. Alvarez & P. Belluck, "Pregnant Women Advised to Avoid Travel to Active Zika Zone in Miami Beach," The New York Times, August 19, 2016, available at https://www.nytimes.com/2016/08/20/science/5-zika-caseswere-transmitted-in-miami-beach-florida-governor-says.html?_r=0 (last visited August 7, 2017); S. Scutti, "Experts warn of increases in tick-borne Powassan virus," CNN, May 3, 2017, available at http://www.cnn.com/2017/05/03/health/powassan-tick-virus/ (last visited August 7, 2017); R. Ferris, "One sign that 2017 will be a bad year for Lyme disease," CNBC, March 6, 2017, available at www.cnbc.com/2017/03/06/one-sign-that-2017-will-be-abad-year-for-lyme-disease.html (last visited August 7, 2017); R. Dawood, "Tick-borne encephalitis threat in central Europe," The Telegraph, June 27, 2008, available at http://www.telegraph.co.uk/travel/travelnews/2202634/Tick-borne-encephalitis-threat-in-central-Europe.html (last visited August 7, 2017).
Many measures are available to protect against insect-borne diseases. They include staying away from areas where the insects at issue are known to proliferate, using an appropriate insect repellent, pretreating clothing or gear with the insecticide permethrin, covering exposed skin with clothing and/or hats, showering soon after coming indoors, sleeping in screened areas or with a bed net, and, in the case of ticks, checking one's body thoroughly to find them before they can attach. See Centers for Disease Control and Prevention, "Avoid Bug Bites," available at https://wwwnc.cdc.gov/ travel/page/avoid-bug-bites (last visited August 7, 2017), "Diseases Spread by Ticks," available at https://wwwnc.cdc.gov/travel/page/diseases-spread-by-ticks (last visited August 7, 2017). With some insect-borne diseases, preventive medicines or vaccinations are available. If an insect-borne disease is contracted, early recognition of symptoms can ensure that treatment is sought promptly, which, in some instances, could make a difference in the ultimate outcome.
Information directed at travelers about insect-borne diseases, and the measures to protect against them, is not hard to come by. It is freely available on the travel pages published by the CDC; see footnote 11 of this opinion; and, further, on websites maintained by other foreign governments. Additionally, as the evidence in this case demonstrated, there are many commercially produced publications that track and compile information for travelers about insect-borne diseases and the areas in which they are endemic.
There was a consensus among the witnesses at trial that the CDC is a standard and primary source used by travel professionals to determine the risks present in a particular area when planning a trip to that area. The defendant's expert David Freedman, a physician who is certified in infectious diseases, tropical and travel medicine, and epidemiology, testified that "the CDC is the [source] that would be regarded as the standard for [travel medicine advice] .... The CDC are our national guidelines for travel medicine." Thompson agreed: "The standard [sources] that we reference are the CDC, that's the first and foremost ...." McKenzie, too, stated that in evaluating travel related health risks "the obvious and primary [sources] in the [United States] would be the CDC and the State Department."
See, e.g., Travel Health Pro, "Diseases in Brief," available at https://travelhealthpro.org.uk/diseases (last visited August 7, 2017) (travel health website established under United Kingdom Department of Health).
In light of the foregoing, we believe 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. School personnel who are organizing an educational trip abroad typically will have superior knowledge of travel planning in general, and the trip itinerary in particular, and, as explained previously, have a general responsibility to protect the minors in their charge while they are away from the custody of their parents. Given the potential dangers posed by serious insect-borne diseases, the existence of methods by which to avoid such diseases and the availability of useful information about them, trip participants naturally would expect the organizer of the trip to pass along appropriate warnings and to use ordinary care to minimize the disease risks posed by the insects in the particular areas to be visited. Trip organizers, for their part, likely would agree that reasonable protective measures, tailored to the risk, are doable and appropriate. Accordingly, we conclude that the first factor of the public policy analysis supports the imposition of a duty on a school organizing a trip abroad to warn about, and to protect against, serious insect-borne diseases.
In the present case, the defendant essentially has admitted as much. As the District Court recounted, "[a]t trial, Head of School Malcolm McKenzie testified that the school has an unquestionable duty to protect the kids from dangerous conditions and injuries wherever it can. ... McKenzie further testified that the school warns students of the risk of malaria [when organizing trips] in tropical regions ... and it requires students to take steps to prevent infection. ... Thompson also affirmed that the school had a duty to determine if there were disease risks on the [China] trip and, specifically, to protect [the plaintiff] against [insect-borne] disease." (Citations omitted; internal quotation marks omitted.) Relatedly, the defendant's travel materials addressed the need for immunizations and other medical issues. There was also ample evidence at trial that the defendant took measures to warn students against the risk of Lyme disease, another tick-borne illness, at its Lakeville campus, and to protect them against that risk. The school's approach is undoubtedly correct. See 2 Restatement (Second), supra, § 314A, comment (d), p. 119 ("[t]he duty to protect the other [in custody] against unreasonable risk of harm extends to risks ... arising from forces of nature or animals").
We turn next to the second and third factors of the analysis, namely, the public policy of encouraging participation in the activity at issue, while weighing the safety of the participants, and the avoidance of increased litigation. We recognize, as we must, that there are many benefits to international educational travel, and that it undeniably is the public policy of Connecticut to promote such travel. See General Statutes § 10–27(a) ( "[i]t 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"). We disagree, however, that recognizing that a school's general duty to protect its students includes the responsibility to take reasonable measures to warn about, and to protect against, serious insect-borne disease risks will have a chilling effect on such travel. Rather, it should have the salutary effect of promoting safety by ensuring that appropriate warnings are given and appropriate protective measures are taken. Compare Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 340–41, 107 A.3d 381 (recognizing duty of landlord to keep common area of property, where children are known to play, free of construction debris is likely to prompt responsible behavior because maintaining common areas is neither costly nor time-consuming; complete sanitization is not required, only "reasonable steps to protect against foreseeable injuries to children"), with Lawrence v. O & G Industries, Inc. , 319 Conn. 641, 659, 126 A.3d 569 (2015) (declining to recognize duty that "fail[ed] to provide a corresponding increase in safety"). Travel, of course, will always entail certain risks, some of which cannot be eliminated or reduced. The elimination of unnecessary risks , i.e., those that can be minimized with little effort, however, should encourage, rather than dampen, enthusiasm for traveling abroad. Cf. Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 703, 849 A.2d 813 (2004) (recognizing that skiers had duty of care to fellow skiers because "requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing" by remedying harms and protecting safety). For risks that cannot be fully neutralized, appropriate warnings likely will suffice to satisfy the duty of care. See 1 Restatement (Third), supra, § 18, comment (h), p. 210. We emphasize that the duty to warn and protect does not amount to an absolute guaranty of safety, nor will it require, in every instance, that every possible precautionary measure be taken. Rather, the scope of the duty necessarily will vary, depending on the risk posed by the particular insect-borne illness at issue, the ages of the participants in the school sponsored trip, and all of the attendant circumstances.
In fact, the sizeable verdict in this case, and the District Court's refusal to set it aside on the basis that no such duty existed, has not caused the defendant to cease offering its international travel programs. Rather, according to the defendant's website, nearly one quarter of its students still participate in these programs annually. See The Hotchkiss School, "Travel Programs," available at https://www.hotchkiss.org/academics/travel-programs (last visited August 7, 2017).
The defendant contends that this case already has spurred additional, unwarranted litigation, drawing our attention to an action that was filed by the plaintiff's attorney on behalf of another minor who contracted Lyme disease while at camp. See Horowitz v.YMCA Camp Mohawk, Inc., United States District Court, Docket No. 3:13–CV–01458 (SRU), 2013 WL 9981204 (D. Conn. 2013). That case apparently has been terminated with a confidential settlement. In the absence of any information as to the facts of the matter or the terms of its settlement, we decline to speculate as to its import, if indeed there is any.
In regard to the potential for increased litigation, we are skeptical that recognition of a school's duty to warn about, or protect against, a serious insect-borne illness when organizing an educational trip abroad will lead to a flood of similar actions. Our research has disclosed a dearth of claims with fact patterns similar to the present case, perhaps because the incidence of students contracting serious insect-borne diseases while on educational trips abroad, when appropriate protective measures are taken, is relatively uncommon. Again, information about insect-borne diseases, and the methods to protect against them, is readily available to travel professionals in a number of resources. See footnotes 11 and 13 of this opinion.
Additionally, the mere recognition of a legal duty by no means creates an open and shut case for every potential plaintiff who may contract an insect-borne disease while on an educational trip abroad. "A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 649, 126 A.3d 569. Thus, recognition of a duty affords students who contract insect-borne diseases on educational trips abroad only an opportunity to prove that the disease at issue was foreseeable, that the school failed to appropriately warn of the danger of the disease and/or to take reasonable precautionary measures and that such failure was a substantial cause of the illness. As always, principles of comparative negligence will apply. Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 325, 87 A.3d 546 (2014). In the case of public institutions, discretionary act immunity may be invoked. See General Statutes § 52–557n(a)(2)(B). It is pure speculation, therefore, that our holding today will open the floodgates to let loose a wave of future litigants who inevitably will prevail. Cf. Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 339–40, 107 A.3d 381 (imposing duty is not tantamount to imposing strict liability; it merely affords plaintiff "opportunity to prove to a jury that [her] injuries were foreseeable, that the defendant failed to take reasonable steps to avoid them, and that this failure was a substantial factor in bringing about those injuries"); see also Doe v. DeSoto Parish School Board , supra, 907 So.2d at 281 ("before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised" [internal quotation marks omitted] ); Prier v. Horace Mann Ins. Co. , supra, 351 So.2d at 268 ("[A] teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident."); Henderson v. Simpson County Public School District , supra, 847 So.2d at 857 (although "[p]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment ... [t]here is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred is not reasonably foreseeable" [citation omitted; internal quotation marks omitted] ); Mirand v. New York , supra, 84 N.Y.2d at 50, 614 N.Y.S.2d 372, 637 N.E.2d 263 ("[e]ven if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained"). Notably, in several of the cases that we have cited herein in support of the general principle that a school has a duty to protect the students in its custody, the plaintiffs ultimately did not prevail due to their inability to satisfy other elements of their negligence claims. See, e.g., Prier v. Horace Mann Ins. Co. , supra, 351 So.2d at 268–69 (although school had duty to protect child from foreseeable injuries, duty was not breached when trash burner that caused injury was not inherently dangerous and had been used without incident for forty years); Graham v. Montana State University , supra, 235 Mont. at 289, 767 P.2d 301 (although defendant university had duty to supervise minor student attending summer program, it was not liable for her injuries sustained in motorcycle accident because proximate cause of injuries was negligence of another student who was operating motorcycle); David v. New York , supra, 40 A.D.3d at 573–74, 835 N.Y.S.2d 377 (although defendant school had duty to adequately supervise students on hayride, that duty was not breached because student-teacher ratio was adequate and there was no prior indication of hazard).
The facts of this case are illustrative. The plaintiff did not prevail simply because of the existence of a legal duty; rather, she produced compelling evidence that the contraction of tick-borne encephalitis on Mount Panshan was foreseeable; see footnote 7 of this opinion; and that the defendant's various failures to exercise reasonable care caused her to contract that illness. In regard to those failures, we find the District Court's observations to be apt: "The school assumes that if public policy allows the [plaintiff] to bring these claims, it could only avoid liability if it chose the most extreme prophylaxis, [b]ut that is not necessarily the case. Here, [the defendant] made no attempt to warn students about insects or to protect students against insect-borne disease. This is not a case where the school provided students with simple, accurate advice about the risk of insect-borne disease and then a quick, gentle reminder to apply bug spray before hiking. The jury may well have found for the defendant had [it] taken those two precautions but not instructed its teachers to apply the [bug] spray onto students' skin or failed to insist that students wear long sleeves and long pants. Too much went wrong in the spring and summer of 2007 for this case to resolve the question of the minimum amount of care required for a school to discharge its duty to protect students from insect-borne disease on school trips abroad." (Emphasis added.) We note in this regard that the third public policy factor does not require the minimization of litigation at all costs, but rather, "focuses upon the diminishment of an inappropriate flood of litigation." (Emphasis in original.) Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. at 703, 849 A.2d 813. Nevertheless, if the recognition of a duty of care encourages potential defendants to exercise reasonable care and take protective measures, "litigation is unlikely to increase; it may even decrease." Monk v. Temple George Associates, LLC, 273 Conn. 108, 120, 869 A.2d 179 (2005).
As we previously have explained, increased litigation may result in those cases in which, by holding that a duty exists, we effectively are "recognizing a new cause of action or otherwise breaking new ground ...." Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 340, 107 A.3d 381 ; see, e.g., Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 659–60, 126 A.3d 569 (declining to hold that construction companies owe duty of care to workers on job site who lose work and thereby suffer purely economic harm due to accident caused by companies' negligence, because expanding companies' liability to encompass such claims likely would increase greatly pool of potential claimants); Jarmie v. Troncale , 306 Conn. 578, 614, 50 A.3d 802 (2012) (declining to extend doctor's duty to warn patient that medical condition could impair driving ability to third party injured in accident caused by patient "because it would open the door to an entirely new category of claims against health care providers ... thereby greatly expanding [their] liability ... and creating an additional burden on the courts," ultimately "driving up health care costs"). Such is not the case here. Rather, the duty to warn students about, and to protect them against, foreseeable insect-borne diseases is but one specific aspect of the already well established general duty of schools to take reasonable measures to ensure the safety of the minors over whom they have assumed custody. We conclude that the second and third public policy factors support the imposition of a duty on a school to warn about, and protect against, the risk of serious insect-borne diseases when organizing a trip abroad.
We turn to the final public policy factor, the decisions of other jurisdictions. Our research has not disclosed any decision that truly is analogous to the present one. We have reviewed the cases cited by the parties and the amici in addressing this factor and find them to be largely unhelpful. The cases on which the plaintiff relies involve very different types of injuries and therefore provide support only for the general proposition that schools taking custody of minor children are responsible for their protection and care. See, e.g., Shin v. Sunriver Preparatory School, Inc. , 199 Or.App. 352, 359, 111 P.3d 762 (sexual assault by parent and resultant emotional harm), rev. denied, 339 Or. 406, 122 P.3d 64 (2005) ; see also Bellman v. Cedar Falls , supra, 617 N.W.2d at 15 (child killed when struck by golf cart commandeered by kindergarteners). Cases seemingly favoring the defense, because they absolve defendants of liability for injuries caused to others by insects, concern claims brought by adult plaintiffs under theories of premises liability, a substantially different context. See, e.g., Riley v. Champion International Corp. , 973 F.Supp. 634, 642–43 (E.D. Tex. 1997) ; Belhumeur v. Zilm , 157 N.H. 233, 236–38, 949 A.2d 162 (2008). In addition, many of the cited cases turn on the issue of foreseeability, a question which, as we have explained, is not before us. See, e.g., Rodgers v. La Quinta Motor Inn , 316 Ark. 644, 647, 873 S.W.2d 551 (1994) ; Butcher v. Gay , 29 Cal.App.4th 388, 400–401, 404, 34 Cal.Rptr.2d 771 (1994) ; Rhodes v. B.C. Moore & Sons, Inc. , 153 Ga.App. 106, 107, 264 S.E.2d 500 (1980) ; David v. New York , supra, 40 A.D.3d at 574, 835 N.Y.S.2d 377. For these reasons, we conclude that the fourth public policy factor in the present case is essentially neutral.
See footnote 7 of this opinion.
The defendant insists that there should be no duty to warn or to protect in the circumstances of this case because the chances of the plaintiff contracting tick-borne encephalitis were remote. Although, in a given case, the rarity of a particular illness should be weighed by the jury when determining whether its contraction was foreseeable, or whether the warnings given and protective measures taken by a school satisfied the duty of care, it is not relevant to a public policy analysis, which should be undertaken by a court without reference to the facts of a particular case.
"[T]he Restatement (Third) [supra] explains that because the extent of foreseeable risk depends on the specific facts of the case, courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter. Indeed, foreseeability determinations are particularly fact dependent and case specific, representing a [factual] judgment about a course of events ... that one often makes outside any legal context. So, by incorporating foreseeability into the analysis of [public policy], a court transforms a factual question into a legal issue and expands the authority of judges at the expense of juries or triers of fact.
"That is especially peculiar because decisions of foreseeability are not particularly legal, in the sense that they do not require special training, expertise, or instruction, nor do they require considering far-reaching policy concerns. Rather, deciding what is reasonably foreseeable involves common sense, common experience, and application of the standards and behavioral norms of the community—matters that have long been understood to be uniquely the province of the finder of fact." (Footnotes omitted; internal quotation marks omitted.) A.W. v.Lancaster County School District 0001, supra, 280 Neb. at 212, 784 N.W.2d 907.
Although the question of whether the defendant properly was proven to be negligent is not before us, we close with the following observation. Although we agree that tick-borne encephalitis is not a widespread illness, when it strikes, the results can be devastating. At the same time, some of the measures one might take to protect against it are simple and straightforward—covering exposed skin, applying insect repellent containing DEET, closely checking one's body for ticks and/or avoiding the woods in areas where the disease is known to be endemic. The case thus brings to mind the risk-benefit calculus articulated long ago by Judge Learned Hand to determine whether, in given circumstances, reasonable care has been exercised. Pursuant to that formulation, both the likelihood and the gravity of potential harm should be taken into consideration, as well as the burden of taking adequate precautions to prevent that harm from occurring. See United States v. Carroll Towing Co. , 159 F.2d 169, 173 (2d Cir. 1947). In short, "[g]iven a balancing approach to negligence, even if the likelihood of harm stemming from the actor's conduct is small, the actor can be negligent if the severity of the possible harm is great and the burden of precautions is limited." 1 Restatement (Third), supra, § 3, comment (f), p. 31; see also 3 F. Harper et al., Harper, James & Grey on Torts (3d Ed. 2007) § 16.9 (2), p. 523 ("[i]f the harm that may be foreseen is great, conduct that threatens it may be negligent even though the statistical probability of its happening is very slight indeed"); 3 F. Harper et al., supra, § 16.9 (3), p. 528 ("the law imposes liability for failure to take precautions, even against remote risks, if the cost of the precautions would be relatively low"). When schools are fulfilling their duty to supervise students in their custody, these admonitions should be taken into account.
Stuart Rose, a physician with expertise in travel medicine who provided expert testimony for the plaintiff, testified that he, like any competent travel medicine practitioner, would give the same advice as that published on the CDC website to protect against tick bites and that DEET based insect repellents, when properly applied, are 80 to 100 percent effective against ticks. In Rose's opinion, if the plaintiff had employed tick protection measures, she would not have contracted tick-borne encephalitis. The jury apparently credited this testimony.
In sum, we conclude that the public policy of Connecticut does not preclude imposing a duty on a school to warn about or to protect against the risk of a serious insect-borne disease when organizing a trip abroad. For that reason, we answer the first certified question in the affirmative.
II
We turn to the second certified question, whether the damages award of approximately $41.5 million, which included noneconomic damages of $31.5 million, warranted a remittitur. We conclude that the award, although sizeable, fell within the necessarily uncertain limits of just damages. Accordingly, we answer the second certified question in the negative.
The following procedural history is relevant. After the jury returned a verdict in the plaintiff's favor and awarded damages of approximately $41.5 million, $31.5 million of which were awarded for pain and suffering, the defendant challenged the award, seeking a remittitur of the noneconomic portion. The defendant did not claim that there was any jury impropriety but, rather, contended that the award was excessive as a matter of law. The District Court, in a comprehensive memorandum of decision, rejected this claim and declined to order a remittitur. The following additional facts are recounted in that court's decision.
Ten days after visiting Mount Panshan, while still in China, the plaintiff began to suffer from a headache, a fever and wooziness. She grew disoriented and was taken to a local hospital. When her condition rapidly deteriorated, the local hospital transferred her to a Beijing hospital. After the plaintiff's parents were contacted, they flew from New York, where the family resides, to Beijing. When they arrived, the plaintiff was partially paralyzed and could not speak; thereafter, she became semicomatose. The plaintiff's parents then had her airlifted to New York, where she was admitted to New York–Presbyterian Hospital.
At trial, the plaintiff's mother described her condition in the Beijing hospital: "[S]he was curled up and had her arms like this ... looking up to the ceiling and totally like she was retarded and in shock and couldn't move and [was] frozen. ... She couldn't speak. She couldn't move. Her eyes were rolled up, almost behind her head. It was just the [most] horrific picture a mother could ever, ever imagine seeing." Because the plaintiff's condition was yet to be diagnosed, and her doctors feared that it was contagious, her parents were not allowed to touch her.
After a week in the hospital and a month at a rehabilitation facility, the plaintiff's condition stabilized and improved, but she remains permanently disabled. Most markedly, she cannot speak, but can only utter soft, monosyllabic, childlike sounds. The plaintiff has limited dexterity in her hands, particularly in her fingers, which are too stiff to bend easily. This inhibits the fine motor skills necessary to facilitate typing. The plaintiff also has limited control over her facial muscles, causing her to drool, to have difficulty eating and swallowing, and to exhibit socially inappropriate facial expressions.
The plaintiff has compromised brain functioning, particularly in the area of executive function, which makes it difficult for her to construct multistep solutions to everyday problems. As a consequence, she scores low on tests that gauge problem solving ability. Although her verbal comprehension scores remain at preinjury levels—in the ninety-sixth percentile—her reading comprehension and math comprehension scores have fallen to the third and first percentiles, respectively. Her scores on perceptual reasoning also are low, in the twelfth percentile. In short, although she remains an intelligent person, she has difficulty using her intelligence.As the District Court explained, however, the plaintiff "is in other ways normal. She still experiences the world much the same way as a person without a brain injury might—she understands what happens around her, she reads, she writes, she feels, she has opinions, and she dreams about her future." With assistance and accommodations, the plaintiff was able to finish high school and, at the time of trial, was enrolled in college.
The District Court commented extensively on the evidence of the plaintiff's suffering, characterizing her condition as "a perfect storm of symptoms that, taken together, magnify individual deficits into a debilitating and humiliating disability." It explained: "[The plaintiff] cannot talk.... She cannot communicate through sign ... nor can she type quickly enough to allow a computer to generate audible words at a natural speed—it takes her a long time to produce a short phrase. ... [The plaintiff] is not only mute; she cannot have a sustained or rewarding social exchange with another person. [The plaintiff] cannot loosen her facial muscles enough to register her emotions accurately. ... She cannot tighten her muscles when they slacken, which means she often drools so profusely that strangers stare at her in public places.... [The plaintiff] always looks like she is flashing a wide-eyed smile, and she sometimes wears wrist bands to mop her saliva. Her facial expressions alternately alienate or disgust the people she attempts to befriend. [The plaintiff] lacks cognitive skills; in particular, she has limited executive function ... [b]ut she also has retained much of her raw, preinjury intelligence. ... [The plaintiff's] cognitive injuries are greater than simply being unable to work through complex problems—she perceives the right solution but cannot implement it. As the [plaintiff's] counsel described, [the plaintiff] 'is like a world-class sprinter forced to live in a box for the next 66 years,' " i.e., the plaintiff's life expectancy at the time of her injury. (Citations omitted; footnote added.)
At trial, the plaintiff testified by typing answers to questions into a machine, which would convert the written answers into a computer generated voice.
In the District Court's view, the "evidence supported the theory that [the plaintiff's] injuries are uniquely cruel." The court recounted testimony from both of the plaintiff's parents, and from other witnesses, that she had no friends or social life and lived an isolated existence, with her only social contact being online. It noted the plaintiff's belief, to which she had testified, that she will never date or have a family, but, rather, will become an "old spinster." The court further summarized the expert testimony, stating "that it would be difficult for [the plaintiff] to perform the basic tasks necessary to manage her own life, let alone ensure the growth, health and safety of a child."
Describing the emotional effect of her circumstances, the District Court explained that her "solitude stings her acutely," that she had contemplated suicide and that she feels shame when strangers gawk at her in restaurants as she struggles to eat, in a manner described by her father as childlike. It noted expert testimony that the plaintiff was at future risk for depression as her life became less structured. The court continued: "[The plaintiff's] heart broke when a boy that she dated prior to her trip to China dumped her and posted cutting remarks about her on Facebook.... She rages when people assume that she suffers from severe mental retardation, and she cannot correct that impression.... Perversely, [the plaintiff ] is arguably in a more emotionally compromised position than some people with more profound cognitive impairments because they may have the odd blessing of not understanding the depth of others' rejection of them. Thus, according to witnesses, [the plaintiff ] lives in a peculiar hell: she knows what she has lost, cannot find cathartic expression for that loss and is treated as if she has lost far more. Because she has a normal life expectancy, she may suffer alone in this state for the next sixty-plus years. " (Citations omitted; emphasis added.)
The District Court also addressed the plaintiff's physical pain and suffering, namely, her endurance of "a grueling illness and recovery," which at its worst had her paralyzed and semicomatose. For a period of time, the plaintiff had to be fed through a feeding tube that she described as "so painful ... like swallowing pool water three times a day." The plaintiff spent weeks in rehabilitation relearning basic tasks. She remains physically limited in many ways, including an impeded ability to use her arms, hands and legs due to extreme muscle tightness and stiffness. Moreover, the evidence at trial was that, given the nature of her brain injury, she would not be making any further meaningful improvement.
In sum, the District Court stated, "[w]itnesses' accounts and [the court's] own courtroom observations of [the plaintiff's] emotional and physical suffering depict a miserable life." Although the court allowed that the plaintiff had retained some abilities and had partaken in some positive experiences since her illness, "the issue here is not whether [the plaintiff] might cobble together fulfilling moments during her life, [but] whether the jury reasonably could have found that she rarely will be able to do so, and, thus, fairly awarded [the plaintiff] a large amount of money to compensate her for that loss." In the court's view, the plaintiff had "provided the jury with more than enough evidence to reach that pessimistic conclusion."
The District Court rejected the defendant's claim that the jury's award was simply excessive as a matter of law, noting the defendant's concession that there was no evidence "that the [jurors had] ignored the law, acted out of punitive animus toward the defendant or otherwise failed to fulfill their duties responsibly." Rather, the jury "struck [the court] as [diligent] attentive, serious, and dedicated." The court surveyed some cases in which large damages awards had been rendered, concluding that the injuries at issue in those cases, when considered together, provided a fair benchmark and an assurance that the award in this case was not excessive. Specifically, when the plaintiff's award and those from the case law were broken down into annual rates of compensation, on the basis of each injured party's remaining life expectancy, the plaintiff's award actually fell on the lower end of the resulting range of values.
The District Court concluded by propounding unanswerable questions: "What is the price of relying on your parents to find you a prom date? ... How much money replaces the loss of the joy you felt when playing the piano? ... Can you calculate the cost of missing your teenage years, of never maturing socially and emotionally beyond the age of fifteen?" (Citations omitted.) It thereafter upheld the award as falling within the range of reasonable verdicts.
We turn to the applicable law. In Connecticut, "the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion. ... Accordingly, the ruling of the [District] [C]ourt on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness." (Citation omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC , 303 Conn. 276, 282, 32 A.3d 318 (2011). Additionally, where, as here, a trial court and a jury have concurred in their determination that a particular damages award is appropriate, that circumstance provides "a persuasive argument for sustaining the action of the court on the motion." (Internal quotation marks omitted.) Birgel v. Heintz , 163 Conn. 23, 30, 301 A.2d 249 (1972) ; see also Camp v. Booth , 160 Conn. 10, 12, 273 A.2d 714 (1970) ( "[t]he refusal of the trial court to disturb the jury's determination adds support to the propriety of the verdict").
The reason for such a deferential standard is clear. "Litigants have a constitutional right to have factual issues resolved by the jury.... This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.... This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded men passed upon by the jury and not by the court." (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital , 207 Conn. 125, 138, 540 A.2d 666 (1988). Accordingly, "we consistently have held that a court should exercise its authority to order a remittitur rarely—only in the most exceptional of circumstances"; Saleh v. Ribeiro Trucking, LLC , supra, 303 Conn. at 280, 32 A.3d 318 ; and where the court can articulate "very clear, definite and satisfactory reasons ... for such interference." (Internal quotation marks omitted.) Id., at 283, 32 A.3d 318.
"Proper compensation cannot be computed by a mathematical formula, and there is no iron-clad rule for the assessment of damages." Campbell v. Gould , 194 Conn. 35, 40, 478 A.2d 596 (1984). "In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. ... Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant. ... The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. ... The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions." (Citation omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC , supra, 303 Conn. at 281, 32 A.3d 318. This court has upheld a remittitur order only when we "have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Internal quotation marks omitted.) Id., at 283, 32 A.3d 318.
In regard to the type of damages at issue, this court has "long held that the loss of life's enjoyments is compensable in personal injury and wrongful death cases." Mather v. Griffin Hospital , supra, 207 Conn. at 150, 540 A.2d 666. "Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries so long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount." Vajda v. Tusla , 214 Conn. 523, 532, 572 A.2d 998 (1990). "[A]lthough it is difficult to measure emotional distress in terms of money, [a]n award of damages for pain and suffering is peculiarly within the province of the trier of fact ...." (Internal quotation marks omitted.) Bhatia v. Debek , 287 Conn. 397, 420, 948 A.2d 1009 (2008). Such is also the case with "compensation for activities in which the plaintiff engaged, prior to [her] injury, which, as a result of that injury, are now foreclosed to [her]." Jerz v. Humphrey , 160 Conn. 219, 223, 276 A.2d 884 (1971). Those damages lie in an "extremely uncertain area ... one in which it is quite impossible to assign values with any precision," and, therefore, are best left to a jury. Id.
Giving due consideration to the foregoing principles and the District Court's view of the evidence, we conclude that the noneconomic damages awarded in this tragic case, although clearly generous, fall within the acceptable range of just compensation. Although no formulaic process of review applies, we will make a few observations. First, there is no allegation that the jury in this case was prejudiced, incompetent or otherwise compromised, but only that its verdict was improperly large. In only the rarest of circumstances should the size of a verdict, standing alone, warrant setting aside that verdict. We do not believe such circumstances are present here. Importantly, the District Court's careful and thorough review of the verdict, and its ultimate decision to let it stand, provided an important check against any claim of undue sympathy. In upholding the verdict, the judge, who was in a position to evaluate the testimony firsthand and is guided by his oath, training and role as an impartial arbiter, concluded that such sympathy was not present. Second, the plaintiff in this case was very young and, despite her injuries, retained a long life expectancy. Accordingly, the period of time over which she is expected to suffer—sixty-six years—is an extensive one. Further, the evidence at trial suggested that the physical effects of her injuries will worsen as she ages and that her psychological condition will deteriorate as the structure characteristic to a young life abates. Additionally, the plaintiff eventually will lose the support of her parents which, by all accounts, was crucial to her recovery and relatively high functioning. Third, we see no fault in the District Court's assessment of the plaintiff's particular set of injuries as uniquely cruel. Through the combination of an inability to speak, control her facial expressions and move her fingers effectively, she has completely lost the ability to have meaningful communication and interaction with other people. Although one can certainly conceive of physical injuries more extreme than those suffered by the plaintiff, it is the destruction of the plaintiff's ability to connect with other people, along with her full awareness of the situation, that makes her suffering stand out. Similarly, a loss of the executive brain function that allows one to access and use intelligence, while at the same time retaining such intelligence, is particularly frustrating. Finally, the plaintiff's mother testified about her passions in life and her dreams, prior to her injury, which included sports, playing the piano and learning to speak foreign languages. The destructive effect of her injuries on these enjoyments and aspirations is painfully apparent.
The defendant invites us to examine the verdicts returned by other juries in other cases and to engage in an exercise of comparing which plaintiff's injuries are worse. We decline this invitation. As we previously have explained, "[n]o one life is like any other, and the damages for the destruction of one furnish no fixed standard for others." (Internal quotation marks omitted.) Katsetos v. Nolan , 170 Conn. 637, 658, 368 A.2d 172 (1976) ; see also Waldron v. Raccio , 166 Conn. 608, 618, 353 A.2d 770 (1974). Consequently, "[i]t serves no useful purpose to compare a verdict in one personal injury case with the verdicts in other personal injury cases. ... The question is one peculiarly within the province of the jury. Juries may differ widely in the conclusions which they reach in what may be apparently similar cases, and, in fact, in any given case one jury may arrive at a result substantially different from that of another jury." (Citations omitted.) Birgel v. Heintz , supra, 163 Conn. at 34, 301 A.2d 249. In the absence of evident mistakes or partiality, however, we defer to the jury's judgment, as the District Court did here. For the foregoing reasons, we answer the second certified question in the negative.
Notably, however, the noneconomic damages award in this case is not the largest verdict of its kind in Connecticut. See D'Attilo v. Viscarello, Docket No. UWY–CV–05–4010135–S, 2011 WL 2489003, Superior Court, judicial district of Waterbury (May 25, 2011) (awarding $50 million in noneconomic damages for forty-three years of expected pain and suffering), available at 2011 WL 2489003 (West's Jury Verdict and Settlement Summary 2015).
We answer the first certified question, "Yes."
We answer the second certified question, "No."
No costs shall be taxed in this court to either the plaintiffs or the defendant.
In this opinion the other justices concurred.
McDONALD, J., concurring.
With respect to the first certified question, I join part I of the majority opinion, which concludes that Connecticut public policy supports 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. I write separately with respect to the second certified question because, while I am compelled to agree with part II of the majority opinion that the trial court did not abuse its discretion in denying remittitur under the various standards we have long articulated, it is evident to me that our current remittitur jurisprudence is internally inconsistent and fails to provide clear guidance as to what constitutes an excessive verdict. Our muddled precedents are particularly problematic when noneconomic damages are challenged. Indeed, while the damages award in the present case shocks my conscience, our existing standard does not provide a recognized basis to conclude that the trial court's conclusion to the contrary was improper. Because the parties have not challenged the existing standards, I write in the hope that this issue will be remedied—either legislatively or by this court—at the earliest appropriate opportunity.
I
The confusion in our remittitur jurisprudence begins with our guidance to the trial courts that are charged with applying it. The majority, drawing on our recent remittitur decisions, presents as a purportedly unified standard what a close examination reveals to be in fact at least four distinct and potentially contradictory standards that govern a court's decision whether to grant or deny a motion for remittitur: "In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. ... Upon completing that review, [1] the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant. ... [2] The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. ... The court's broad power to order a remittitur should be exercised [3] only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions. ... This court has upheld a remittitur order [4] only when we have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Citation omitted; internal quotation marks omitted.)As we previously have acknowledged, certain aspects of these tests—whether the damages award is plainly excessive or exorbitant, and whether it shocks the court's sense of justice —are highly subjective, providing "vague guidance at best" to courts charged with applying them. Saleh v. Ribeiro Trucking, LLC , 303 Conn. 276, 282, 32 A.3d 318 (2011). Other aspects of the standard, by contrast, aspire to objectivity, and suggest that an order of remittitur is appropriate only when the court can identify some sort of articulable legal error or when the damages awarded are without any evidentiary support.
We have indicated that the terms " 'shocks the sense of justice' " and " 'shocks the conscience' " may be used interchangeably in this context. Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 279 n.6, 32 A.3d 318 (2011).
As the defendant, The Hotchkiss School, notes, the certified question is misleading insofar as ticks, the disease vector at issue in the present case, are not insects but arachnids, cousins of the spider and the mite. Following the convention that has been established in this case, I will use the term "insect-borne" as synonymous with the more accurate—but less ceremonious—term "bug-borne."
If the virtually unprecedented $31.5 million noneconomic damages award in the present case is not so shocking as to require remittitur, for example, one wonders on what basis a reviewing court could conclude that an award of $100 million, or $500 million, is too much. At oral argument, the counsel for the plaintiff Cara L. Munn volunteered that he would not trade places with her even for $1 billion. If that is the only check on the magnitude of unquantifiable noneconomic damages, then I fear that such awards are, effectively, unreviewable.
Munn's parents, Orson D. Munn III and Christine Munn, were also named as plaintiffs in this matter. For simplicity, I refer to Cara L. Munn alone as the plaintiff.
It certainly is possible to reconcile these various expressions of the governing legal standard. It may be, for example, that the more objective standards flesh out the meaning of the more subjective ones, so that a trial court may find that an award is exorbitant or shocking only if the court also determines that the award arises from some identifiable jury bias or legal error. Or it may be that we have inadvertently agglomerated tests and standards that are in fact specific to distinct types of actions or damages. It would make sense, for instance, if an award of economic damages could be reduced (or increased, in the case of additur) only when the award is unsupported by the record evidence or has been calculated on the basis of some legally improper methodology. Compensation for less quantifiable noneconomic damages such as physical pain and emotional suffering, by contrast, might be reviewable only by a more amorphous "shocks the conscience" standard. In our most recent attempt to sort out this state's common law of remittitur, however, we have provided little clarity, unhelpfully holding only that "a trial court ordering a remittitur must set forth in the memorandum of decision clear, definite and satisfactory reasons for so ordering." Saleh v. Ribeiro Trucking, LLC , supra, 303 Conn. at 283, 32 A.3d 318. Further guidance is necessary.
A further question that may need to be addressed in the future is whether the same standards govern a trial court's decision to increase and to decrease a jury verdict. Although many of the considerations are no doubt the same, our state constitution may place greater restrictions on additur (which awards to a plaintiff damages not authorized by the jury) than on remittitur (which merely reduces some portion of the authorized damages). See generally Dimick v. Schiedt, 293 U.S. 474, 486–87, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (applying federal constitution).
The Court of Appeals, relying on our decision in Ruiz v. Victory Properties, LLC, 315 Conn. 320, 107 A.3d 381 (2015), a premises liability case, concluded that Connecticut courts construe foreseeability especially broadly as it relates to children. Munn v. Hotchkiss School, supra, 795 F.3d at 330. All that we stated in Ruiz, however, is that degree of care that is required vis-à -vis children varies according to their age and maturity, and that younger children may not appreciate the dangers inherent in their surroundings. Ruiz v. Victory Properties, LLC, supra, at 332–33, 107 A.3d 381. The primary wild card in the present case is not, as in Ruiz, a child's conduct but, rather, the distribution of infected ticks and the epidemiology of the tick-borne virus. Accordingly, any inferences to be drawn from Ruiz about the unpredictability of children's behavior are largely irrelevant. To the extent that the plaintiff's own conduct and propensity to follow instructions is relevant to the foreseeability question, Goldberger, which involved a child much closer to the plaintiff's own age (albeit still several years younger), is more directly on point. Goldberger v. David Roberts Corp., supra, 139 Conn. at 629, 96 A.2d 309.
II
Although it is arguably possible to reconcile the various standards to be applied by the trial court, the same cannot be said for the standards by which we purport to review a trial court's decision to grant or deny a remittitur. The majority paradoxically notes that "the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion ." (Emphasis added; internal quotation marks omitted.) This is precisely what prior case law has dictated. Nonetheless, this oxymoronic statement of the law would seem to subject purely legal determinations, which ordinarily are reviewable de novo, to a deferential and fact-specific abuse of discretion standard of review.
Since this peculiar iteration of the standard of review for remittitur decisions emerged in the early 1980s, Connecticut's appellate courts have struggled to apply it in a consistent and intelligible manner. Although most of our cases indicate that the decision to grant a remittitur is a discretionary determination that is reviewable only for clear abuse of discretion, in some instances we have indicated or implied that we will review a remittitur determination de novo, as a pure question of law, or, possibly, under both an abuse of discretion and a de novo standard. See, e.g., Buckman v. People Express, Inc. , 205 Conn. 166, 175, 176 n.10, 177, 530 A.2d 596 (1987) (stating that whether "amount of the verdict is 'exorbitant' and unjust in light of all of the evidence ... raises a question of law," and concluding, contrary to trial court and solely on basis of size of award, that verdict was "so grossly excessive as to shock the conscience of this court"); Peck v. Jacquemin , 196 Conn. 53, 72, 491 A.2d 1043 (1985) ("[t]he trial court now makes its determination as a pure question of law"); see also Wichers v. Hatch , 252 Conn. 174, 181–82, 745 A.2d 789 (2000) (reviewing de novo trial court's additur order because court had concluded "as a matter of law" that it was required to increase award).We also have provided conflicting accounts of precisely how a trial court exercises its discretion in determining that an award is excessive as a matter of law. Compare, e.g., Mahon v. B.V. Unitron Mfg., Inc. , 284 Conn. 645, 665, 935 A.2d 1004 (2007) (only after finding that award is excessive as matter of law may court, in exercise of its discretion, reduce jury award), with Alfano v. Insurance Center of Torrington , 203 Conn. 607, 614, 525 A.2d 1338 (1987) (if court determines that award is excessive it is required to order remittitur, but amount remitted rests within court's discretion) and Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 110, 952 A.2d 1 (2008) (decision rests entirely within court's discretion).
The language at issue traces its origins to a 1982 public act. Prior to 1982, the authority of the trial court to order a remittitur derived both from the court's inherent common-law authority to supervise the trial process; Buckman v. People Express, Inc., 205 Conn. 166, 174, 530 A.2d 596 (1987) ; Baldwin v. Porter, 12 Conn. 473, 485 (1838) ; and from General Statutes § 52–228 and the associated rules of practice, Practice Book §§ 16–35 and 17–3. During that period, our cases generally recognized that (1) the trial court has "broad legal discretion" to grant or deny a motion for remittitur, (2) such discretion, however, is not unfettered, (3) appellate tribunals review a trial court's ruling on a motion for remittitur for a "clear abuse of ... discretion," and (4) "[t]he proper test to be applied is to determine whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Lee v. Lee, 171 Conn. 1, 3, 368 A.2d 11 (1976).
In 1982, the legislature amended General Statutes (Rev. to 1981) § 52–216a, which barred a civil jury from being informed of the existence of a settlement or release agreement involving a joint tortfeasor but vested the trial court with discretion to reduce the verdict by the amount of the settlement/agreement, in response to a decision by this court concluding that the trial court's unfettered discretion to reduce the verdict impermissibly intruded on the constitutional role of the jury. See Seals v. Hickey, 186 Conn. 337, 350–53, 441 A.2d 604 (1982) ; see also Peck v. Jacquemin, 196 Conn. 53, 69, 491 A.2d 1043 (1985). Number 82–406, § 3, of the 1982 Public Acts eliminated the discretionary language and replaced it with language permitting remittitur or additur if the verdict is "excessive as a matter of law" or "inadequate as a matter of law," respectively. The expansive language and limited legislative history of the amendment raised the question of whether the legislature intended not only to address the concerns identified in Seals with respect to joint tortfeasor situations but to limit more generally the discretion of the trial courts to order remittiturs. The substantive legislative history of the amendment is limited to a brief statement by its cosponsor, Representative Alfred J. Onorato:
"What this amendment would do or attempt to do is to make Connecticut law consistent with the law in other states, and on a federal level in the determination of jury verdicts.
"Right now in Connecticut, whether a verdict is set aside by the court or whether remittitur is added, or whether there's an additur is in the discretion of the court.
"What this amendment would do would be to put those same safeguards on it that are in other states and are in the federal court system, that the only time a remittitur or an additur would be practical is when the court rules as a matter of law that the verdict is either excessive or inadequate. That's what this amendment would do. It would take the discretion out, and [the court] would have to find as a matter of law that the verdict was out of balance one way or the other." (Emphasis added.) 25 H.R. Proc., Pt. 19, 1982 Sess., pp. 6177–78.
Although the legislative history suggested an intent to bring Connecticut's law of remittitur into conformity with that of the federal courts and other states, my research indicates that many jurisdictions afforded their trial courts broad discretion in these matters at that time, and also that there was no single prevailing standard governing remittitur outside of Connecticut. See generally S. Cravens, "The Brief Demise of Remittitur: The Role of Judges in Shaping Remedies Law," 42 Loy. L.A. L. Rev. 247, 250 (2008) ("There is not tremendous consistency in the versions of remittitur employed in various state court systems across the country. ... While wording of the standards may vary, the decision whether to grant a remittitur is generally committed to the sound discretion of the trial court."); I. Sann, "Remittiturs (and Additurs) in the Federal Courts: An Evaluation with Suggested Alternatives," 38 Case W. Res. L. Rev. 157 (1987) (canvassing federal jurisprudence); see also I. Sann, supra, 183 ("[t]he line drawn by courts in such cases has varied from court to court and from case to case"); I. Sann, supra, 187 ("[s]ome judges ... seem to grant remittiturs in any case in which the judge disagrees with the verdict"). Accordingly, it is difficult to determine whether, in continuing to treat most remittitur decisions as discretionary matters, we have disregarded the will of the legislature as expressed explicitly in General Statutes § 52–216a.
It is true that liability for negligence may lie when "harm of the general nature as that which occurred is foreseeable ... even though the manner in which the accident happens is unusual, bizarre or unforeseeable." Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Nevertheless, if the Mt. Pan trip itinerary only anticipated and only permitted walking on paved paths and travelling by cable car, activities that would have posed no risk of insect-borne disease, then harm of the general sort that the plaintiff suffered was foreseeable to the defendant only if it was likely that students would engage in a sylvan frolic of their own.
Finally, our cases display some confusion over whether (1) General Statutes § 52–216a ; see footnote 4 of this concurring opinion; now governs the granting and review of all remittitur claims, or (2) whether the common-law standard continues to govern most such claims, with § 52–216a governing only those remittitur decisions arising under circumstances in which a jury is unaware of the existence of a potentially relevant settlement or release agreement between a party and a joint tortfeasor. Compare Bovat v. Waterbury , 258 Conn. 574, 599, 783 A.2d 1001 (2001) ("[t]he express language of § 52–216a suggests that the statute applies solely to actions in which there are, or could be, joint tortfeasors"), with Saleh v. Ribeiro Trucking, LLC , supra, 303 Conn. at 281, 32 A.3d 318 (reviewing remittitur pursuant to § 52–216a despite absence of any joint tortfeasors, release, or settlement agreement); see also Wichers v. Hatch , supra, 252 Conn. at 186–87, 745 A.2d 789 (statute codifies common law of additur and remittitur).
III
The lack of clear and consistent standards for the review of excessive jury awards, particularly with respect to noneconomic damages, is troubling on many levels. Neither the defendant, The Hotchkiss School, nor the insurers that underwrite the risks of schools similarly situated to the defendant that offer study abroad programs, possibly could have anticipated the magnitude of the verdict in the present case. The unfortunate consequences that may flow from the uncertainty created thereby include, among others, significantly increased premiums or policy exclusions for noneconomic damages, either of which might discourage schools and other organizations from offering such trips, which are broadly viewed as a beneficial educational and social experience.
The lack of clear and definite standards also is worrisome in light of the legal scholarship suggesting that civil damages awards may be tainted by socioeconomic and racial disparities. See, e.g., A. Chin & M. Peterson, "Deep Pockets, Empty Pockets: Who Wins in Cook County Jury Trials," Institute for Civil Justice (Rand Corp. 1985) pp. v, viii, 29, 38–40 (reviewing 9000 civil jury verdicts in Illinois and concluding that race had "a pervasive influence on the outcomes," with black plaintiffs receiving substantially smaller awards than white plaintiffs for comparable injuries); see also Martin v. Charleston Area Medical Center , 181 W. Va. 308, 312, 382 S.E.2d 502 (1989) ("it is well documented that some jury awards are affected by the race of the plaintiff"). I am not aware of any empirical evidence that such disparities are present in Connecticut's civil justice system. Nor do I have any objective basis to conclude that the virtually unprecedented award in the present case would have been lower if the plaintiff Cara L. Munn had been a member of a family of more modest means or of a historically disadvantaged minority group. Nevertheless, I could more readily comprehend the monumental verdict in this case if we had more objective standards by which to judge the excessiveness of a noneconomic damages award, standards that leave less space for biases, whether explicit or implicit, to manifest.
Munn's parents, Orson D. Munn III and Christine Munn, were also named as plaintiffs in this matter. For simplicity, all references herein to the plaintiff are to Cara L. Munn.
The CDC noted that the risk of contracting TBE varies according to the degree of unprotected exposure in forested areas, and also that most cases occur during the months of March and November.
IV
Ultimately, if I were to review the damages award in the present case de novo, I likely would find that the award of $31.5 million in noneconomic damages so shocks my sense of justice as to compel the conclusion that the jury must have been motivated by sympathy for the plaintiff. I do not mean in any way to minimize the tragic and life altering injuries that the plaintiff has sustained. There is clear evidence of profound loneliness. She suffers the debilitating effects that often result when one has a visible disability. The prime of her youth is lost to her, and many of her childhood dreams are unattainable, or at least appear to be at this point in time.
At the same time, I cannot ignore the fact that juries frequently award noneconomic damages that are orders of magnitude lower to plaintiffs whose injuries are, by any objective standard, at least as grievous: individuals who spend each day of their lives in excruciating pain, or whose injuries leave them incapable of even the most basic forms of selfcare and human interaction. Although much has been taken from the plaintiff, much abides. On the basis of testimony to the jury at trial, the plaintiff can still undertake travel, pursue her studies, engage in exercise, seek work, and play some sports. Although the plaintiff's suffering is substantial, the jury in the present case was not presented with any structured basis, or expert testimony, or quantitative evidence of any sort that would have led them to the $31.5 million figure or that reveals any nexus whatsoever between the plaintiff's noneconomic injuries and this virtually unprecedented award. See Munn v. Hotchkiss School , 795 F.3d 324, 336 (2d Cir. 2015).
I return to where I began. Notwithstanding the untenable legal foundation on which we review these things, on the basis of our (internally inconsistent) precedents as they presently stand, I am compelled to conclude that the trial court did not abuse its discretion in denying remittitur in this case. The parties have not asked us to clarify our remittitur jurisprudence at this time, nor have they asked us to reconsider our oft-stated position that the denial of a motion for remittitur is, in most instances, reviewable only for abuse of discretion. Accordingly, because I perceive nothing in the record that would compel the conclusion that the United States District Court for the District of Connecticut abused its discretion in denying the defendant's motion, I agree with the majority that the answer to the second certified question is "no." If the legislature is not inclined to provide further guidance, however, then I trust that we will address these issues in due course.
ESPINOSA, J., concurring.
In view of the questions that the United States Court of Appeals for the Second Circuit chose to certify to this court, I am compelled to agree with the majority's answers to those questions. Specifically, I agree that (1) it is the role of the legislature and not of this court to exempt schools from liability for remote harms such as insect-borne1 disease that may befall students on study abroad programs, and (2) we must defer to the determination by the United States District Court for the District of Connecticut that the jury verdict, while disquietingly large, is not so clearly the result of partiality, prejudice, mistake or corruption that remittitur is required. I write separately to express my hope that the 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 L. Munn2 were reasonably foreseeable; see Munn v. Hotchkiss School , 795 F.3d 324, 329 (2d Cir. 2015) ; a question on which that court has not sought our counsel.
I
I begin by reviewing the relevant legal standards. As the Court of Appeals recognized; id., at 329–30 ; our law permits a jury to find that a harm is foreseeable only if "an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result ...." (Emphasis added; internal quotation marks omitted.) Sic v. Nunan , 307 Conn. 399, 407, 54 A.3d 553 (2012). "[D]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable." (Internal quotation marks omitted.) Id., at 409, 54 A.3d 553. "Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken." (Emphasis added; internal quotation marks omitted.) LePage v. Horne , 262 Conn. 116, 124, 809 A.2d 505 (2002) ; see also id. (" 'ordinary care has reference to probabilities of danger rather than possibilities of peril' "); Lodge v. Arett Sales Corp. , 246 Conn. 563, 575–76, 717 A.2d 215 (1998) ( "[i]nasmuch as virtually all harms, in hindsight, are literally foreseeable ... the law has rejected a literal foreseeability test as the fulcrum of duty" [citation omitted; internal quotation marks omitted] ). Negligence is, therefore, to be distinguished from an accident, insofar as "an accident is an unexpected happening [whereas] negligence is based on something reasonably to be anticipated." Higgins v. Connecticut Light & Power Co. , 129 Conn. 606, 613, 30 A.2d 388 (1943).
Consistent with these principles, this court has found that a harm was not reasonably foreseeable, as a matter of law, when the injury, although not beyond the realm of the conceivable, could only be fairly characterized as highly improbable. See, e.g., Sic v. Nunan , supra, 307 Conn. at 409, 54 A.3d 553 ("being thrust into the travel lane of oncoming traffic while one is lawfully stopped awaiting an opportunity to turn simply does not fall within the category of foreseeable risk"); Lodge v. Arett Sales Corp. , supra, 246 Conn. at 577, 717 A.2d 215 ("the brake failure of a negligently maintained fire engine is beyond the scope of the reasonably foreseeable risks created by the transmission of a false alarm"); Schiavone v. Falango , 149 Conn. 293, 298, 179 A.2d 622 (1962) (not reasonably foreseeable that unattended child would climb and fall from exterior stairway railing); Noebel v. Housing Authority , 146 Conn. 197, 201–202, 148 A.2d 766 (1959) ("[i]t is unreasonable as a matter of law to charge the defendants with anticipation of the likelihood that ... someone in a hurry might try to jump over [a fence comprised of rubber-covered wooden stakes], misjudge its height or his own agility, and fall"); Goldberger v. David Roberts Corp. , 139 Conn. 629, 630, 96 A.2d 309 (1953) (jury could not reasonably find it foreseeable that teenage camper, described as " 'problem child,' " having been instructed to dispose of wooden stick and then left unsupervised, would swing stick in tent, resulting in broken fragment striking and injuring younger boy).3 As I explain in the next part of this concurring opinion, none of the risks that we deemed to be legally unforeseeable in the cited cases was as demonstrably and quantifiably remote as the risk that the plaintiff would contract tick-borne encephalitis (TBE) or some other serious insect-borne illness during her brief field trip to Mount Panshan (Mt. Pan) in the Tianjin province of China.
II
A
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. In China, the primary TBE risk in 2007 was understood to exist along China's far northern borders with Russia and Mongolia, hundreds of miles north of Mt. Pan. Depending on which disease distribution map one credited, Tianjin province was either completely outside or just on the outskirts of the recognized endemic area.
The plaintiff's expert testified that, even within endemic areas, the risk to travelers is low unless extensive outdoor activities are planned. Immunization against the disease is not available in the United States. In countries in which vaccination was available in 2007, it was recommended only " 'for prolonged stays that include hiking, camping or similar outdoor activities in rural wooded regions of risk areas.' " Notably, the itinerary of the defendant, The Hotchkiss School, did not include any prolonged activities in such environments. At Mt. Pan, the students followed a paved path up the mountain, and they were to have come down in a cable car. Jean Yu, the defendant's faculty trip leader, testified that she permitted the plaintiff and a few other students to walk back down the mountain only after they had promised to remain on that same paved path. To conclude that the plaintiff's injuries were foreseeable, then, one would have to find, among many other things, that it was likely that students would seek and receive permission to walk back down the mountain, disobey safety instructions, leave the pathway, and bushwack their way to the bottom.4 Such an inference is precluded by our conclusion in Goldberger v. David Roberts Corp. , supra, 139 Conn. at 632–33, 96 A.2d 309, that a counselor could not, as a matter of law, be expected to foresee that a thirteen year old camper would ignore safety instructions while outside adult supervision, resulting in unlikely injuries.
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. In other words, the 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.
The statistic that I find most remarkable comes from plaintiff's exhibit 34, a publication of the Centers for Disease Control and Prevention (CDC), Morbidity and Mortality Weekly Report dated March 26, 2010, and entitled "Tick-Borne Encephalitis among U.S. Travelers to Europe and Asia—2000–2009." In that report, the CDC, having reviewed all laboratory records for the prior decade, 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. On the basis of its research, the CDC—which the parties agree is the most authoritative source on such matters—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 semi- rural area around Mt. Pan, only one of them would likely contract TBE. The plaintiff herself could have lived on Mt. Pan for more than one millennium before she would have been expected to catch the disease. She was there for just a few hours. By my calculations, she had less than a one in two million chance of contracting TBE during her brief field trip to Mt. Pan,5 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.
See B. Howard, "What Are the Odds a Meteorite Could Kill You?," National Geographic (February 9, 2016), available at http://news.nationalgeographic.com/2016/02/160209-meteorite-death-india-probability-odds (placing odds at one in 1.6 million) (last visited July 27, 2017).
By way of comparison, the plaintiff's own travel medicine expert wrote that a tourist is not considered to be at risk when the risk of contracting a particular disease is one in one million.
It bears emphasizing in this respect that the only reason that it was even conceivably foreseeable that an American tourist would contract TBE while sightseeing at Mt. Pan was because TBE may have been identified as a risk on the CDC's China webpage. But see part II B 1 of this concurring opinion. There was no evidence or testimony at trial, however, indicating that the various miscellaneous diseases listed near the end of a CDC travel advisory page occur with any particular frequency, nor that a disease that the CDC identifies as present in a country or a region necessarily poses a risk throughout that country or region. China is a large country, with a landmass roughly the size of the United States. Thus, the fact that a disease such as TBE occurs somewhere in the northeastern quadrant of China does not mean that an affliction found near the Siberian border necessarily poses a risk in Beijing or Tianjin, any more than the Zika virus endemic to south Florida threatens tourists visiting Kansas City or Saint Louis, which also are located in the southeastern quadrant of our country.
In this instance, the CDC itself actually quantified the risk involved, indicating that it was minuscule. 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.
It was no more likely that the plaintiff would fall victim to other harm of the general nature as that which she suffered. The evidence at trial suggested that contracting other serious insect-borne illnesses such as Japanese encephalitis during the field trip to Mt. Pan was highly improbable. There was undisputed evidence, for example, that no foreign tourist had contracted that disease in China during the previous decade, or ever in Tianjin, most likely because Japanese encephalitis is endemic only in rural pig and rice farming areas and is transmitted only at night. Indeed, the plaintiff's own travel medicine expert wrote that the average tourist is not at risk of contracting Japanese encephalitis in China.
Moreover, although there were a few brief references at trial to the presence of Lyme disease in China, the Court of Appeals appears to have accepted the defendant's argument that that disease is not a harm of the same general sort as TBE. I agree. Lyme disease is pervasive in Connecticut, and yet one need only visit the nearest park, playground, or sports field to see that wearing long pants and long sleeved shirts on a hot summer day is not the norm, however prudent such measures might be.
B
In light of the abundant, authoritative, and uncontroverted evidence that TBE is an extremely rare disease, one that posed a negligible risk to the hundreds of thousands of foreign visitors to the Mt. Pan area as of 2007, the Court of Appeals reached the only reasonable conclusion: "no one could have expected that [the plaintiff] would contract TBE." Munn v. Hotchkiss School , supra, 795 F.3d at 332. One would have thought that would have ended the inquiry, that the fact that no one could have expected a certain outcome would, almost by definition, render that outcome unforeseeable. Indeed, 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.But they say that on a clear judicial day you can foresee forever; Thing v. La Chusa , 48 Cal.3d 644, 668, 771 P.2d 814, 257 Cal.Rptr. 865 (1989) ; and both the District Court and the Court of Appeals were able to persuade themselves that the plaintiff's injuries were sufficiently probable to sustain the jury's verdict. In declining to hold as a matter of law that the plaintiff's injuries were unforeseeable, those courts relied primarily on the facts that (1) the defendant had actual foreknowledge of the risk of TBE in northeast China; Munn v. Hotchkiss School, supra, 795 F.3d at330 ; and (2) a finding of foreseeability was not unreasonable in light of the relatively painless measures that could have been taken to protect the plaintiff. Munn v. Hotchkiss School , 24 F.Supp.3d 155, 179, 198 (D. Conn. 2014). I consider each theory in turn.
Black's Law Dictionary (6th Ed. 1990), for example, defines foreseeability, among other things, as "[t]hat which is objectively reasonable to expect, not merely what might conceivably occur." (Emphasis added.)
The federal courts also relied on the fact that various CDC advisories and other travel websites referenced a risk of TBE or Japanese encephalitis in China or East Asia. See Munn v. Hotchkiss School, supra, 795 F.3d at 330 ; Munn v. Hotchkiss School, supra, 24 F.Supp.3d at 176–79. As I explain in part II A of this concurring opinion, however, just as a visitor to Cleveland need not take precautions against a disease such as the plague, which affects only a few individuals each year in the mountain west; see CDC, Morbidity and Mortality Weekly Report: Human Plague—United States, 2015 (Vol. 64, August 28, 2015), available at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6433a6.htm (last visited July 27, 2017); the mere fact that a disease has occurred somewhere in China or Asia does not, in and of itself, make it likely that an American tourist will contract the disease during a visit to Mt. Pan.
1
I first consider the primary theory on which the Court of Appeals relied, namely, that the defendant had actual foreknowledge that TBE and other serious insect-borne diseases posed a risk to students travelling to Mt. Pan. There is no evidence in the record that any employee of the defendant ever saw an authoritative government warning indicating that TBE was endemic to Tianjin or Mt. Pan. The only employee of the defendant who allegedly saw any CDC warning relating to the presence of TBE anywhere in China was international travel programs director David Thompson. At trial, Thompson initially testified that, at the time of the trip, he saw a warning on the CDC's China webpage indicating that TBE was present in northeast China. He immediately qualified this testimony, however, explaining that the CDC website carried such a warning at the time of trial but that he did not recall whether any references to TBE had been posted prior to the June, 2007 trip. Thompson also testified that, in any event, the CDC warning did not mention Tianjin and that he did not believe that Tianjin was encompassed by the CDC's definition of "Northeastern China," which he understood to cover only China's far northern border areas with Russia and Inner Mongolia. Given his lack of recollection, he ultimately concluded that "it might be useful to see what it is that the CDC said at that time because—it's been so long, and I don't want to be inaccurate."
Mt. Pan is located approximately fifty miles due east of Beijing Capital International Airport. Accordingly, if the CDC travel warnings for northeast China encompassed the Mt. Pan area merely because Mt. Pan is located in the northeastern quadrant of the country, they also would cover the capital airport region and would apply to many international travelers to China.
In response, the plaintiff's counsel showed Thompson defendant's exhibit 546, which was a version of the CDC's China webpage that had been archived on the Internet Archive's Wayback Machine. See generally http://archive.org/web/web.php (last visited July 27, 2017). The webpage, which had been archived in December, 2007, indicated that it was created and last modified on August 1, 2007, nearly two months after the defendant's trip commenced and more than three months after Thompson and Yu provided students and their parents with a link to the CDC website and other health-related trip information. Confronted with this August, 2007 document stating that "[TBE] occurs in forested regions in northeastern China," and asked whether "that's something you knew at the time from reading the material," Thompson replied: "Yes, I believe I would have seen that." Thompson never expressly testified that he saw such a warning on the CDC website prior to the June, 2007 trip. He simply acknowledged that he would have seen it at the time that it was posted on the CDC website.
The fact that the CDC webpage was not created until August 1, 2007, precludes any possibility that Thompson reviewed that particular webpage at an earlier date. His tepid acknowledgement that he "would have seen" the August, 2007 report at some unspecified time, which followed repeated statements by Thompson that he did not recall whether he had seen any warnings about TBE prior to the trip, is the sole evidence of record to support the conclusion that any employee of the defendant saw a TBE warning on an authoritative government website prior to the trip. Moreover, it is undisputed that the April 13, 2007 version of the CDC Travelers' Health page covering East Asia, including China, did not identify TBE as a disease endemic to that region. Notably, that webpage did specifically identify various other diseases, such as avian influenza, malaria, and severe acute pulmonary syndrome, also known as SARS, as being present in China. One week later, on April 21, 2007, the defendant sent health information to trip participants and their families and referred them to the CDC website.Still, the Court of Appeals was of the opinion that, "while the August 1, 2007 advisory postdates the trip, it is possible that a similar advisory was on the website before" the students embarked for China. Munn v. Hotchkiss School , supra, 795 F.3d at 330. That is certainly one possibility, that sometime between April 13 and early June, 2007, the CDC suddenly changed its assessment of the risk of TBE in China, despite the fact that no foreign traveler had contracted the disease during that time. If that was the case, none of the plaintiff's travel health experts was able to explain what precipitated the new risk assessment at that time. A second possibility, of course, is that the CDC did not update its assessment until August 1, 2007, right after the plaintiff's blood had tested positive for TBE antibodies.
Although the evidence was not before the trial court, we now know that the latter, more plausible scenario is what actually happened. On direct appeal, the defendant asked the Court of Appeals to take judicial notice of the fact that the same database on which the August, 2007 CDC webpage was archived also contains a version of that webpage that was created on May 25, 2007, two weeks before the students left for China, and that remained active and was archived on June 25, 2007, two weeks after the trip commenced. See id. ; see also https://web.archive.org/web/20070625010918/ wwwn.cdc.gov/travel/destinationChina.aspx (last visited July 27, 2017). That webpage makes no mention of TBE as a risk in China. In reality, then, Thompson could not possibly have seen the warning contained in the August 1, 2007 webpage prior to the trip, because the version of the website that was accessible to the public before and during the trip did not contain any such warning.
In addition, there was testimony at trial that, in 2007, the CDC published a specific article on TBE that did not list China among those countries in which the disease was endemic.
The Court of Appeals denied the defendant's eleventh hour attempt to supplement the record with a copy of the May 25/June 25 webpage. See Munn v. Hotchkiss School , supra, 795 F.3d at330. The court did so despite the fact that the federal courts—both trial and appellate—routinely take judicial notice of CDC websites, and also of the Internet Archive's Wayback Machine as reliable evidence of how a particular website appeared on a particular date. In any event, in light of Thompson's clear hesitation to affirmatively testify that he had seen any reference to TBE in China prior to the trip, the Court of Appeal's speculation that there might possibly have been some reference to that effect on the CDC website seems a rather slim reed on which to hold the plaintiff's injuries foreseeable.
See, e.g., United States v. Chester, 628 F.3d 673, 692 n.4 (4th Cir. 2010) ; Gent v. CUNA Mutual Ins. Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010) ; Seddens v. McGinnis, Docket No. 91-1500, 1992 WL 174541, *2 (7th Cir. 1992) (decision without published opinion, 972 F.2d 352 [7th Cir. 1992] ); Brown v. Federal Express Corp., 62 F.Supp.3d 681, 683, 686–87 (W.D. Tenn. 2014), aff'd, 610 Fed.Appx. 498 (6th Cir. 2015).
See, e.g., Perera v. Attorney General, 536 Fed.Appx. 240, 242 n.3 (3d Cir. 2013) ; Distributorsoutlet.com, LLC v. Glasstree, Inc., Docket No. 11-CV-6079 (PKC) (SLT), 2016 WL 3248310, *2 (E.D.N.Y. June 10, 2016) ; Erickson v. Nebraska Machinery Co., Docket No. 15-CV-01147-JD, 2015 WL 4089849, *1 n.1 (N.D. Cal. July 6, 2015) ; Pond Guy, Inc. v. Aquascape Designs, Inc., Docket No. 13-13229, 2014 WL 2863871, *4 (E.D. Mich. June 24, 2014).
2
The District Court, in concluding that there was sufficient evidence to sustain a finding of foreseeability, also applied the Learned Hand formula, pursuant to which reasonable care is required only if the burden of adequate precautions is less than the gravity of an injury discounted by the probability that the injury will occur. See United States v. Carroll Towing Co. , 159 F.2d 169, 173 (2d Cir. 1947). The District Court apparently was of the view that, notwithstanding the remote probability of a tourist contracting TBE or other serious insect-borne disease at Mt. Pan, the defendant was obliged to take precautionary measures because (1) the potential consequences of diseases such as TBE are severe, and (2) the burdens of prevention—warning or requiring students to wear long sleeved shirts and long pants, apply insect repellants containing diethyltoluamide (DEET), and perform periodic tick checks—appear "minimal." Munn v. Hotchkiss School , supra, 24 F.Supp.3d at 198.
It is not clear to me that Connecticut has embraced the law and economics definition of foreseeable harm as expressed in the Learned Hand formula. As I have explained, our cases consistently have defined a foreseeable harm simply as one that is likely to occur or that reasonably can be anticipated, without any reference to the burdens of prevention or the magnitude of the risk involved. Even if we were to assume that those considerations are relevant to the foreseeability question, however, I do not agree that they were sufficient to overcome the infinitesimally low probability that one of the defendant's students would contract TBE at Mt. Pan.
The District Court did not cite to any Connecticut authority suggesting that we have.
Of course, those considerations may be relevant to the distinct question of whether a breach of duty has occurred.
a
Turning first to the magnitude of the risk prong of the equation, no one disputes that TBE is a potentially serious disease. Although many cases are entirely asymptomatic, and many others result in a full recovery, for individuals like the plaintiff, who are unlucky enough to contract a serious case, the long-term effects are devastating. But the reality is that if a student had merely stubbed her toe while walking down Mt. Pan, we would not be having this conversation. Most of the risks about which travelers worry—and sue—when visiting exotic, foreign destinations are ones that carry potentially serious, if not fatal, consequences. These risks run the gamut from tropical diseases to medical emergencies, food poisoning, street crime, terrorism, civil unrest, transportation accidents, extreme weather events, animal attacks, and random imprisonment. The list of remote but serious risks is, literally, endless.
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.
See RT News, "Tourist Mauled to Death in Brutal Hour–Long Tiger Attack in Chinese Zoo" (January 29, 2017), available at https://www.rt.com/viral/375513-tiger-killing-china-zoo (last visited July 27, 2017).
See T. Phillips, "Chinese Passengers Start Riot in Airport over Delayed Flights," The Telegraph (February 7, 2014), available at http://www.telegraph.co.uk/news/worldnews/asia/china/10623528/Chinese-passengers-start-riot-in-airport-over-delayed-flights.html (last visited July 27, 2017).
See A. Krishnan, "Tiananmen Attack a 'Jihadi Operation': Islamist Group," TheHindu.com (May 28, 2016), available at http://www.thehindu.com/news/international/world/tiananmen-attack-a-jihadi-operation-islam-ist-group/article5386937.ece (last visited July 27, 2017).
See Z. Tingting, "University Graduate Robs Foreigners in Beijing Bars," China.org.cn (November 4, 2013), available at http://china.org.cn/china/2013-11/04/content 30492897.htm (last visited July 27, 2017).
See R. Pocklington, "Shocking Video and Pictures Show Tourists Plunge into Water as New Bridge Collapses," Mirror (October 14, 2013), available at http://www.mirror.co.uk/news/world-news/chinese-bridge-collapse-video-pictures-2369243 (last visited July 27, 2017).
See C. Bodeen, "China: 1 Tourist Killed, 18 Hurt by Falling Rocks," San Diego Union–Tribune (July 21, 2013), available at http://www.sandiegouniontribune.com/sdut-china-1-tourist-killed-18-hurt-by-falling-rocks-2013jul21-sto-ry.html (last visited July 27, 2017); L. Qian, "Tourist Falls to Death after Posing at Cliff," ShanghaiDaily.com (August 28, 2013), available at http://www.shanghaidaily.com/nation/Tourist-falls-to-death-after-posing-at-cliff/shdaily.shtml (last visited July 27, 2017).
See C. Custer, "Tourist in China Detained for 5 Days after Using Mobile Phone on Airplane," TechInAsia (October 17, 2012), available at https://www.techinasia.com/tourist-china-detained-5-days-mobile-phone-airplane (last visited July 27, 2017).
See A. Laing & J. Ensor, "Elderly British Tourists Detained in China Were Arrested for 'Watching BBC Documentary,' " The Telegraph (July 18, 2015), available at http://www.telegraph.co.uk/news/worldnews/asia/china/11746637/China-to-deport-foreign-tourists-after-terror-video-case.html (last visited July 27, 2017).
See L. Abrams, "New Bird Flu Claims Its First Victim," Salon.com (December 18, 2013), available at http://www.salon.com/2013/12/18/new_bird_flu_claims_its_first_victim (last visited July 27, 2017).
See J. Kaiman, "In China, a Single Plague Death Means an Entire City Quarantined," TheGuardian.com (July 25, 2014), available at https://www.theguardian.com/cities/2014/jul/25/plague-death-china-quarantine-yumen-city (last visited July 27, 2017).
See E. Crouch, "Beijing Street Meat Poisons Tourist, Definitely Wasn't Lamb," Shanghaiist (July 23, 2013), available at http://shanghaiist.com/2013/07/23/beijing_street_meat_poisons_tourist.php (last visited July 27, 2017).
See A. Hodgekiss, "Sushi Lover's Entire Body Left Riddled with WORMS after Eating Contaminated Sashimi," DailyMail.com (September 24, 2014), available at http://www.dailymail.co.uk/health/article-2768117/Sushi-lover-s-entire-body-left-riddled-tapeworm-parasites-eating-contaminated-sashimi.html (last visited July 27, 2017).
See C. Kitching, "Chinese Woman Dies after Being Accidentally Knocked over by Canadian Tourist at Great Wall of China," DailyMail.com (April 12, 2015), available at http://www.dailymail.co.uk/travel/travel_news/article-3035644/Chinese-woman-dies-accidentally-knocked-Canadian-tourist-Great-Wall-China.htm (last visited July 27, 2017).
See "Monks Beat Tourist with Stones and Hammers," CRI (August 7, 2013), available at http://www.china.org.cn/china/2013-08/07/content_29644989.htm (last visited July 27, 2017).
See "China Highway Tourist Bus Fire Kills Six in Tianjin," BBC (October 1, 2012), available at http://www.bbc.com/news/world-asia-china-19782466 (last visited July 27, 2017); see also S. Yingying, "Extreme Heat Causing Vehicle Fires," ChinaDaily USA (July 17, 2013), available at http://usa.chinadaily.com.cn/epaper/2013-07/17/content_16787740.htm (discussing spontaneous combustion of sightseeing bus) (last visited July 27, 2017).
See "Yunnan Bus Crash Kills 8," Global Times (July 15, 2013), available at http://www.globaltimes.cn/content/796078.shtml (last visited July 27, 2017).
See "Tourist Bus Falls from Cliff in China, 3 Killed," Zee News (April 29, 2013), available at http://zeenews.india.com/news/world/tourist-bus-fallsfrom-cliff-in-china-3-killed_845542.html (last visited July 27, 2017).
See "Seven Tourists Injured, 300 Evacuated in Yunnan, China Earthquake," HTH Worldwide (September 3, 2013), available at https://www.hthstudents.com/extras/haiti_article_template.cfm?p_fn=ne_news_108576.html (last visited July 27, 2017).
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. As the Court of Appeals recognized in certifying the duty question to this court, "this case is likely to have repercussions beyond this particular fact pattern as it implicates broad questions of Connecticut public policy." Munn v. Hotchkiss School , supra, 795 F.3d at 334.
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, not to mention the myriad of more mundane dangers that confront visitors to China—everything from air pollution and motor vehicle accidents to sunburn and sexually transmitted diseases. 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. 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.
Even under an economics based approach, then, it makes no sense to require that a school warn and prepare its students against each and every remote but potentially serious risk that awaits international travelers. The task would be as hopeless as it would be self-defeating. This court has recognized as much in the closely related context of medical informed consent, wherein a physician need not disclose to patients every remote risk potentially associated with a medical procedure but only those deemed sufficiently likely as to be material. See Pedersen v. Vahidy , 209 Conn. 510, 517–23, 552 A.2d 419 (1989). Put differently, the Learned Hand formula may make sense in the context of determining whether reasonable care requires the adoption of an individual precautionary measure. We must be wary, however, in cases such as this that sound in informed consent, lest the need to warn and protect participants against each individual remote but potentially serious outcome has the aggregate effect of inuring us to more substantial risks or discouraging participation in generally safe and wholesome activities.
b
I turn next to the other side of the Learned Hand equation, the question of whether the protective measures necessary to prevent students from contracting TBE were truly minimal and unobtrusive. One challenge in addressing this question is that the jury, in finding that the defendant failed to protect the plaintiff, did not specify what protective measure or measures the defendant should have adopted. The District Court, in upholding the verdict, speculated that merely "provid[ing] students with simple, accurate advice about the risk of insect-borne disease and then a quick, gentle reminder to apply bug spray before hiking" might have been sufficient to satisfy the defendant's duty to the plaintiff. Munn v. Hotchkiss School , supra, 24 F.Supp.3d at 198 n.24. The truth, however, is that, throughout the trial, the plaintiff's counsel repeatedly reminded the jury that the defendant does not allow its male students to attend class without jackets and ties and that teachers send students back to their rooms if they show up to the school's annual Eco Day wearing inappropriate footwear. In the same breath, counsel told the jury that the defendant had a responsibility "to be sure [students] wear the right type of clothing, to be sure that they use ... effective repellent, to be sure that they stay out of the woods without using these precautions .... These are not difficult precautions to enforce ." (Emphasis added.) The plaintiff's counsel also emphasized how governmental agencies mandate that their employees use insect disease precautions in the field. Thus, while one can always speculate, the most reasonable reading of the verdict, in light of how the plaintiff argued the case, is that the jury found that the defendant's employees were negligent in not forcing the students to (1) wear long pants and long sleeved shirts, apply DEET, and conduct tick checks, or (2) remain on the bus if they refused. This conclusion is bolstered by the fact that one of the plaintiff's witnesses, another student who attended the trip, testified that the defendant's teachers not only instructed the students to bring insect repellant on the trip but also repeatedly reminded them to use it while in China. So that clearly was not enough.
Of course, in retrospect, any parent, familiar with the facts of the present case and the terrible injuries that the plaintiff has sustained, would think it a small price to pay to make their child use insecticide and wear protective clothing. If I thought it at all likely that my child would suffer such a fate, then no protective measure would be too onerous. But the relevant question is whether a reasonable school or parent, ex ante, knowing that the chance of contracting TBE was less than one in two million and the chance of suffering permanent damage lower still, would have required high school students to take such precautions. I would not.
There was undisputed testimony that it was uncomfortably hot when the students visited Mt. Pan in the late morning or early afternoon of June 23, 2007, and recorded weather data confirm that temperatures in the region approached 90 degrees Fahrenheit on that day. It is difficult enough to get teenagers to wear long pants and long sleeved shirts in March or November, let alone in the heat of the summer. To force them to swap out their shorts and tank tops for jeans and turtlenecks, merely to protect against diseases that were virtually unknown at Mt. Pan and that no tourist had ever contracted, strikes me as both unreasonable and unrealistic. Surely the risk that a student would have suffered dehydration, hyperthermia, or heat exhaustion from climbing a mountain in fall clothing on a 90 degree June day was a far more pressing concern.
On June 23, 2007, the high temperature was 90 degrees in Beijing and 89 degrees in Tianjin. See https://www.wunderground.com/history/airport/ZBAA/2007/6/23/DailyHistory.html?req_city=&req_state=&req_statename=&reqdb.zip=&reqdb.magic=&reqdb.wmo= (last visited July 27, 2017); https://www.wunderground.com/history/airport/ZBTJ/2007/6/23/DailyHistory.html?req_city=Tianjin&req_state=&req_statename=China&reqdb.zip=&reqdb.magic=&reqdb.wmo= (last visited July 27, 2017); see also Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (appellate court may take judicial notice of historical temperature data); Hadley v. Peters, Docket No. 94-1267, 1995 WL 675990, *8 (7th Cir. 1995) (decision without published opinion, 70 F.3d 117 [7th Cir. 1995] ) (same).
What about the bug spray? It is true that DEET is deemed by the federal government to be safe for human use. As discussed at trial, however, not all parents are comfortable with putting such a strong chemical insecticide on their children, at least when not absolutely necessary, and many families decline to use DEET even in areas in which serious insect-borne illnesses are pervasive. Indeed, there was uncontested expert testimony at trial that even United States Marines serving in tropical environments who are under direct orders to apply DEET routinely refuse to do so and risk malaria rather than subject themselves to such a "major intervention."
See United States Environmental Protection Agency, "Safety Review of DEET," available at https://www.epa.gov/insect-repellents/deet (last visited July 27, 2017); see also "Reregistration Eligibility Decision (RED): DEET," EPA738–R–98–010 (September 1998), p. 6; Environmental Protection Agency, "DEET (N,N-Diethyl-meta-toluamide) Interim Registration Review Decision Case Number 0002," EPA–HQ–OPP–2012–0162 (September 2014), p. 9.
Nor can we consider these costs in a vacuum. The jury verdict in this case, as affirmed by the District Court and the Court of Appeals, stands for the proposition that a school has a duty to warn and protect its students against any remotely foreseeable harm that might befall them while travelling abroad or, at least, any remotely foreseeable serious risk, the existence of which may be readily and reliably determined. As I have explained, the range of such risks is virtually limitless. So too are the protective measures that might be taken to shield children from all those threats.
As evidenced by the literature that the defendant's trip chaperones provided to the students and their families, simply protecting students from the most common risks faced by overseas travelers requires constant vigilance toward a broad range of threats. Students travelling to China were cautioned, among many other things, to: keep a low profile; never leave their possessions unattended; report unattended bags to the police; never agree to carry a package for anyone; carry emergency phone numbers, extra cash, health insurance information, and a separate copy of identification documents; not carry too much cash or too many credit cards; avoid dangerous areas, short cuts, narrow alleys, and poorly lit streets; try not to be out on the streets alone at night; ignore negative comments and pick-up lines; beware con artists, pickpockets, and beggars; be especially cautious at train stations, shopping areas, and public transportation; be wary while making phone calls; abstain from intimate sexual contact; carry one's own supply of spermicidal latex condoms in a cool, dry place; be wary of foreigners who trade on stereotypes of American sexual values; remember that blood transfusions may carry a risk of HIV infection; prepare for temperature changes and rain; be mindful of feelings of home-sickness, boredom, fatigue, physical discomfort, depression, helplessness, and hostility to the host culture; dress respectably and appropriately; and try to maintain a healthy mind and body.
Then consider all of the various remote risks for which special precautions could be taken. The defendant might have asked the students to wear bee masks on Mt. Pan, given the serious threat posed by giant killer bees in parts of northern China. Teachers could have roped students together like mountain climbers atop the Great Wall to prevent a fatal fall, or made them take all their meals at the Tianjin McDonald's, lest they be sickened by the local cuisine.Returning to the point I made before, none of those safety measures, standing alone, is especially oppressive relative to the serious risk of injury or death that it might prevent. Taken together, however, all of the minor protective measures that a school might impose in order to shield students from the plethora of remote risks that one confronts when travelling abroad would be oppressive. If my children were travelling to the hypothetical malaria-ridden swamp to which the parties referred throughout trial, then of course I would want them to take the appropriate prophylactic measures, regardless of side effects and regardless of inconvenience. But I would not expect them to visit major tourist attractions on a hot summer day covered in chemical sprays and cocooned in all manner of protective clothing, merely to ward off perils that might impact a few extremely unlucky individuals each year in a country of more than one billion people.
See C. Pleasance, "China Goes to War with the Killer Giant Hornets That Have Claimed 42 Lives Already," DailyMail.com (October 8, 2013), available at http://www.dailymail.co.uk/news/article-2449483/China-goeswar-killer-giant-hornets-killed-42.html (last visited July 27, 2017).
c
Finally, if we are going to weigh the economic costs and benefits associated with preventative measures, then we also must take into account the fruits that flow from letting adolescents engage in activities that have not been completely sanitized of risk. Study abroad and outdoor activities such as hiking are attractive and beneficial precisely because they are attended by certain risks, and challenge participants in certain ways, beyond what students normally confront in the controlled school environment. See K. Burch, " Going Global: Managing Liability in International Externship Programs—A Case Study," 36 J.C. & U.L. 455, 495 (2010). In this case, for instance, part of the defendant's curriculum was to encourage groups of students to venture into Tianjin without adult supervision, forcing them to use their emergent Chinese language skills to find the restaurant where the group was to dine that evening. If schools are forced to sterilize such activities to the point that even the most remote risks have been eliminated, then we will deprive our youth of much of the opportunity for independence, experiential learning, and personal growth that comes from surmounting such challenges—not to mention taking all the fun out of them. As one legal scholar has explained, "[t]he objective of focusing on safety concerns related to study abroad is not to offer a risk-free foreign experience. That goal is no more desirable than the idea that car manufacturers should produce risk-free vehicles so crash-worthy and slow that no one could ever be harmed in an auto-accident and no suit ever filed. Education inevitably entails risks, particularly when it takes place in another country. Exposing students to some of those risks is part of the educational process. ... American program providers should not operate super-cautious foreign programs ...." (Footnotes omitted.) V. Johnson, "Americans Abroad: International Educational Programs and Tort Liability," 32 J.C. & U.L. 309, 315–16 (2006).
Of course, as parents, we would love to be able to put our children into all sorts of challenging, character building situations, yet have them always walk away successful and unscathed. But life is not a Disney movie, and that is not a realistic expectation. As both this court and others frequently have observed, it would be unwise, if not impossible, to impose such a duty on schools and related entities. See Goldberger v. David Roberts Corp. , supra, 139 Conn. at 631–32, 96 A.2d 309 ; see also Gustin v. Assn. of Camps Farthest Out, Inc. , 267 A.D.2d 1001, 1003, 700 N.Y.S.2d 327 (1999) ("[i]n such a setting, constant supervision is neither feasible nor desirable because [o]ne of the benefits of such an institution is to inculcate self-reliance in the [participants] which an overly protective supervision would destroy" [internal quotation marks omitted] ).C
In light of these considerations, it is no surprise that courts in other jurisdictions, considering claims arising from improbable injuries sustained on school trips, have not hesitated to hold such risks unforeseeable as a matter of law. See, e.g., Mancha v. Field Museum of Natural History , 5 Ill.App.3d 699, 701, 283 N.E.2d 899 (1972) (affirming dismissal of action because "[i]t cannot be said that an assault on a [twelve year old] boy in the Field Museum is an occurrence which a reasonable man would anticipate"); David v. New York , 40 A.D.3d 572, 573, 835 N.Y.S.2d 377 (2007) (directing judgment dismissing complaint arising from unprecedented injury during hay ride). I would encourage the Court of Appeals to reach this same conclusion.
Barring that, I hope that our legislature will follow the example of California and confer full or partial statutory immunity from suit on study abroad and related programs, in furtherance of Connecticut's well established policy of promoting and expanding international education and foreign study programs. See General Statutes § 10–27. There is a reason why more than thirty organizations and associations representing in excess of 20,000 colleges, universities, graduate programs, private secondary schools, public boards of education, international education and exchange programs, camps, and outdoor experience programs all have appeared as amici curiae in this case, in support of the defendant's position. These organizations recognize that this case invariably will come to stand for the proposition that foreign study—and perhaps all extra-curricular—programs must not only warn of, but also affirmatively protect participants from, even the most remote risks and dangers. Such an outcome will adversely impact the ability of these programs to provide these tremendous opportunities in Connecticut, "radically and negatively impacting the number and type of international student experiences schools will continue to offer their students." As the Court of Appeals recognized, "[i]f the award stands, it would set an important precedent for negligence cases arising from educational trips. ... 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." (Citation omitted.) Munn v. Hotchkiss School , supra, 795 F.3d at 333. Even the District Court, which generally rejected the defendant's public policy arguments, conceded that "some schools may cancel programs" as a result of the verdict in this case. Munn v. Hotchkiss School , supra, 24 F.Supp.3d at 198. I fear that the impact will be especially harsh on our less privileged students and those who attend underfunded public schools.
See Cal. Educ. Code § 35330(d) (Deering 1995); see also Sanchez v. San Diego County Office of Education, 182 Cal.App.4th 1580, 1584, 106 Cal.Rptr.3d 750 (2010).
For example, the legislature may wish to codify a version of the rule that the District Court adopted in Mercier v. Greenwich Academy, Inc., Docket No. 3:13-CV-4 (JCH), 2013 WL 3874511, *5 (D. Conn. July 25, 2013), which held that a coach and school are liable only for reckless or intentional conduct resulting in player injury during a high school athletic contest. This may be an appropriate standard for situations in which imposition of a negligence standard risks sterilizing the activity and stripping it of its primary value or purpose.
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I understand that other juries in other cases may not be as willing to find that other extremely improbable tragedies are foreseeable. But surely the unprecedented verdict in this case will attract the attention of potential plaintiffs who have suffered unlikely injuries while abroad. And surely the fact that the Court of Appeals has held such an "undeniably remote" injury to be foreseeable; Munn v. Hotchkiss School , supra, 795 F.3d at 332 ; will place additional pressure on future defendants to settle such claims, regardless of their merits.In short, other schools and programs will not have the luxury of ignoring equally remote risks, in the hope that other juries might be less generous or that other courts might draw firmer limits on foreseeability. Providers will have to conduct their affairs, plan their itineraries, and insure themselves as if they are strictly liable for any and all remote risks that might come to pass. Students will be the worse for it. We conduct our affairs in the shadow of the law, and this case casts a long shadow indeed.