Friday, August 28, 2015

Tick-borne disease case heads to Connecticut Supreme Court

This is a sad case about a schoolgirl who went on a school-organized trip to China and contracted tick-borne encephalitis. Her family sued the school for negligence, and the jury awarded them $41.5 million in damages, including $31.5 million in non-economic damages. The verdict is vacated for now so that the Connecticut Supreme Court can decide if we wants these kinds of lawsuits to proceed.

The case is Munn v. The Hotchkiss School, decided on August 3. The school did not warn Cara Munn or her family that you can get this disease in China. Cara and her friends went off the beaten path while exploring China and got bitten by a tick. Because of the illness, Cara lost her ability to speak and has difficulty controlling her facial muscles, causing her to drool. She has also lost some cognitive function.

The Court of Appeals (Walker, Lynch and Lohier) thinks the Connecticut Supreme Court should review this case before the Second Circuit issues a final ruling. Here's why. Any first year law student will tell you there are four basic elements to any tort claim: duty, breach, causation and harm. In plain English, if you breach a legal duty to someone and cause foreseeable injury that causes damages, you are liable for a tort. If Freddie is too lazy to shovel his sidewalk after a snowstorm and someone slips and falls and breaks his leg, then Freddie is liable because he knew damn well that any icy sidewalk could foreseeably cause that result.

The Second Circuit thinks the School had a duty to warn the Munns about the risk that Cara might get the disease if she got bitten by the tick. But that does not end the inquiry. Under Connecticut law, we also ask if "on the basis of a public policy analysis, ... whether the defendant's responsibility for its negligent conduct should extend to the consequences or particular plaintiff in this case." Put another way, is it in society's interests to allow the Munns to recover damages for negligence like this? Sadly for the Munns, it may not be. The Court says:

Courts place a high value on recreational activities for children, even if they sometimes create safety concerns. Although the present case does not involve competitive sports, it also implicates important questions of public policy because of the benefits of educational trips for children.


[A]s Hotchkiss and several amici point out, it is unreasonable to expect a trip organizer to warn students about or protect them against every danger. Field trips are intended to expose children to situations outside of their comfort zones and of the organizers’ control. Such trips thus naturally entail a certain level of risk. Here, the risk of contracting tick‐borne encephalitis was undeniably remote. No American had ever before contracted TBE in China. Thus, although travelers may generally expect a school to warn about or protect against dangers, including serious insect‐borne diseases, no one could have expected that Munn would contract TBE.

Second, international trips and outdoor activities, while sometimes posing substantial health and safety risks, offer important benefits to their participants. The public benefits of international education and student exchanges are written into Connecticut statutory law.
As you can see, there are competing societal values at stake here. If we allow parents to sue a school for this kind of negligence, it may reduce the number of educational excursions that would normally benefit children. And so on. As these issues are unique to Connecticut law, the Second Circuit sends to case to the Connecticut Supreme Court for them to work it out. When they do, the case returns to the Court of Appeals for a final ruling.

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