Monday, September 7, 2015

» A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky New Private Law

A panel of the Second Circuit Court  of  Appeals has certified to the Connecticut Supreme Court two questions arising from a large verdict in favor of a student who contracted encephalitis from a tick while hiking in a mountain forest on a school trip to China.  The plaintiff persuaded the jury that the school had been negligent in failing to warn of risks and instruct on how to protect oneself.

Remarkably the Second Circuit asked the Connecticut Supreme Court to advise it on whether the Hotchkiss school owed a duty of care in such circumstances.   As Professors Goldberg and Zipursky point out the question is so simple that it is remarkable the Circuit Court felt it needed help.

It is black letter law as stated in the Third Restatement of Torts - General Principles:
§ 6 Duty: Even if the defendant’s negligent conduct is the legal cause of the plaintiff’s physical harm, the [defendant] is not liable for that harm if the court determines that the defendant owes no duty to the plaintiff. Findings of no duty are unusual, and are based on judicial recognition of special problems of principle or policy that justify the withholding of liability.
There appears to be no special problem of principle here - particularly given the history of care owed by guardians, custodians, and schools for those entrusted to their care.  The Court was apparently distracted by the remoteness of the particular harm suffered.  But that is hardly the same sort of circumstance as justified a finding of no duty in Port Authority v. Acadian - the 1993 World Trade Center case against the manufacturers of the fertilizer  used as a prime ingredient in the truck bomb.  There remoteness of risk led to dismissal as it had in the Oklahoma City Murrah Federal Building bombing by Tim McVeigh.

As Goldberg and Zipursky point out the operative question is negligence - that is breach of duty, rather than the existence of a duty.  And that seems rather simple conceptually if uncertain as a matter of fact.  Of course there are risks in hiking in the forest - here and there.  There is a deer tick borne Lyme disease epidemic in Connecticut - a disease which got its moniker from a Connecticut town.  A jury on proper proofs could conclude that the school should have investigated the risk of similar hazards in China, and the availability there of appropriate medical treatment.  - gwc

» A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky New Private Law

by John C. P. Goldberg & Benjamin C. Zipursky

Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015). (Thanks to the Volokh Conspiracyand How Appealing for bringing the case to our attention.)

Facts and Outcome in the Federal Courts.

Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.

Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut: (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.

What’s Wrong With the Decision to Certify.....


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