MUNN v. HOTCHKISS SCHOOL
Connecticut Supreme Court
ESPINOSA, J., concurring
SECOND CONCURRENCE
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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
I
I begin by reviewing the relevant legal standards. As the Court of Appeals recognized; id., 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
Consistent with these principles, this court has found that a harm was
II
A
The record reveals the following undisputed facts. The plaintiff was the first known United States citizen—and quite possibly the first foreign travеler—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 wаs 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
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 semirural 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 contraсting TBE during her brief field trip to Mt. Pan,5 lower even than her chance of being struck and killed by a meteorite.6 If
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 meаn 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 TBE8 at Mt. Pan, as our law requires before liability for negligence will lie.
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 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.9 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.
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 covеr only China‘s far northern border areas with Russia and Inner Mongolia.11 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.”
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,
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.12 Notably, that webpage did specifically identify various other diseases, such as avian influenza, malaria, and severe acute рulmonary 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 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 scenariо 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.13
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 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.16 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,17 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.
a
Turning first to the magnitude of the risk prong of the equation, no one disputes
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,18 caught up in airport riots,19 murdered by Uighur terrorists,20 robbed in bars,21 injured under collapsing bridges,22 and killed in various ways at scenic lookout points.23 Chinese authorities have imprisoned tourists for using their cellphones on airplane mode24 and for watching a British Broadcasting Corporation documentary.25 A visitor to the country could fall victim to a novel strain of avian flu26 or to an ancient affliction such
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 Appеals 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 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
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 reаsonable 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 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 employеes 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
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.36 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.
What about the bug spray? It is true that DEET is deemed by the federal government to be safe for human use.37 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.”
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
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, аnd 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 homesickness, 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 defendаnt 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.38 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 prophylactiс 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.
c
Finally, if we are going to weigh the economic costs and benefits associated
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. 631-32; see also Gustin v. Assn. of Camps Farthest Out, Inc., 267 App. Div. 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 [рarticipants] 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 App. Div. 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 California39 and
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 Aрpeals has held such an “undeniably remote” injury to be foreseeable; Munn v. Hotchkiss School, supra, 795 F.3d 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.