165 A.3d 1167 (Conn. 2017), SC 19525, Munn v. Hotchkiss School

Docket NºSC 19525
Citation165 A.3d 1167, 326 Conn. 540
Opinion JudgeROGERS, C. J.
Party NameORSON D. MUNN III ET AL. v. THE HOTCHKISS SCHOOL
AttorneyAntonio 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 Am...
Judge PanelRogers, C. J., and Palmer, Eveleigh, McDonald and Espinosa, Js. ROGERS, C. J. In this opinion the other justices concurred. McDONALD, J., concurring. ESPINOSA, J., concurring. McDONALD, J., concurring. ESPINOSA, J., concurring.
Case DateAugust 11, 2017
CourtSupreme Court of Connecticut

Page 1167

165 A.3d 1167 (Conn. 2017)

326 Conn. 540

ORSON D. MUNN III ET AL.

v.

THE HOTCHKISS SCHOOL

SC 19525

Supreme Court of Connecticut

August 11, 2017 [*]

Argued March 27, 2017

Page 1168

[Copyrighted Material Omitted]

Page 1169

[Copyrighted Material Omitted]

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Appeal from United States District Court for the District of Connecticut Underhill, J.; Walker, Lynch and Lohier, Js.,

Munn v. Hotchkiss Sch., 795 F.3d 324, (2d Cir. Conn., Aug. 3, 2015)

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. In this opinion the other justices concurred. McDONALD, J., concurring. ESPINOSA, J., concurring.

OPINION

Page 1171

[326 Conn. 543] 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),1 are: (1) Does Connecticut public

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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.

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.2 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,3 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 [326 Conn. 544] 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.

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 [326 Conn. 545] 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., 337.

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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" 4 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.

[326 Conn. 546] 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.

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 [326 Conn. 547] 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 encephalitis

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in forested regions of northeastern China or the need to protect against it.5

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.[6] 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, [326 Conn. 548] 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.

We turn to the first certified question, which concerns the defendant's duty to the plaintiff. " Duty is a legal conclusion about relationships between...

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