Munn v. Hotchkiss School ( 2017 )

 ORSON D. MUNN III ET AL. v. THE
HOTCHKISS SCHOOL
(SC 19525)
Rogers, C. J., and Palmer, Eveleigh, McDonald and Espinosa, Js.
Syllabus
The plaintiff, a student at the defendant private boarding school, brought
a negligence action in federal court to recover damages resulting from
injuries that she sustained after she had contracted tick-borne encephali-
tis on an educational trip to China organized by the defendant. Prior to
the trip, one of the defendant’s employees, who served as the director
of the defendant’s international programs and who provided the students
who were traveling to China with information about the trip, viewed
on the website for the United States Center for Disease Control and
Prevention information concerning travel to China. That information
included a warning that tick-borne encephalitis occurred in the forested
region of China where the students would be traveling and an instruction
to travelers that the disease could be prevented by taking certain precau-
tions to protect against insect bites. The plaintiff claimed that the defen-
dant had been negligent by, inter alia, failing to warn students going on
the trip and their parents of the risk of exposure to tick-borne encephali-
tis, and by failing to ensure that the students took protective measures
against insect bites to prevent contracting that disease. During the trip,
the students visited a certain mountain in an area of China where the
website had reported that tick-borne encephalitis was present, and the
defendant did not warn the students to take precautions to protect
against insect bites. After the group of students ascended the mountain,
the plaintiff and a small group of other students became lost in the
woods when they were allowed to descend the mountain by themselves.
The plaintiff received insect bites and, ten days later, began to experience
the first symptoms of tick-borne encephalitis. She subsequently became
partially paralyzed and semicomatose, but, thereafter, her condition
stabilized and improved. As a result of her illness, the plaintiff cannot
speak, has limited dexterity in her hands that prevents her from typing,
and has limited control over her facial muscles causing her to drool, to
have difficulty eating and swallowing, and to exhibit socially inappropri-
ate facial expressions. Furthermore, although the plaintiff remains intel-
ligent, she has compromised brain functioning that inhibits her ability
to utilize that intelligence. The jury awarded the plaintiff $41.75 million
in damages, of which $31.5 million constituted noneconomic damages,
and the United States District Court for the District of Connecticut
rendered judgment thereon for the plaintiff. The defendant appealed to
the Second Circuit Court of Appeals, which concluded that there was
sufficient evidence presented at trial for the jury to find that the plaintiff’s
illness was foreseeable. The Second Circuit then certified questions to
this court as to whether Connecticut public policy supported imposing
a duty on a school to warn about or to protect against the foreseeable
risk of a serious insect-borne disease when it organizes a trip abroad
and whether the noneconomic portion of the damages award warranted
a remittitur. Held:
1. 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, as it is widely recognized
that schools generally are obligated to exercise reasonable care to pro-
tect students in their charge from foreseeable harms, and there was no
compelling reason to create an exception in this case for foreseeable
serious insect-borne diseases: the normal expectations of the partici-
pants in a school sponsored educational trip abroad involving minor
children supported the imposition of a duty on the defendant to warn
about and to protect against serious insect-borne diseases in the areas
to be visited on the trip, as trip participants naturally would expect that
a school will give appropriate warnings and use ordinary care with
respect to serious insect-borne diseases in the particular areas to be
visited; furthermore, the recognition that a school’s general duty to
protect its students includes the responsibility to take reasonable mea-
sures to warn about and to protect against serious insect-borne diseases
will not have a chilling effect on educational travel but will promote
safety by ensuring that unnecessary risks are eliminated or reduced by
appropriate warnings and protective measures; moreover, this court
was skeptical that the recognition of this duty would lead to a substantial
increase in litigation, as such a duty afforded students only the opportu-
nity to prove negligence and did not create a new cause of action, but
was one specific aspect of the already well established general duty of
schools to take reasonable measures to ensure the safety of minors
over whom they have assumed custody; in addition, contrary to the
defendant’s claim that there should be no duty to warn or to protect in
the circumstances of this case because the probability of the plaintiff
contracting tick-borne encephalitis was remote, the rarity of tick-borne
encephalitis was not relevant to this court’s public policy analysis and
should be weighed by the fact finder when determining foreseeability.
2. The jury award to the plaintiff fell within the necessarily uncertain limits
of just damages and did not warrant a remittitur: there was no allegation
that the jury was prejudiced, incompetent or otherwise compromised,
the District Court concluded that the jury was not motivated by undue
sympathy, and only in the most rarest of circumstances should the size
of the verdict alone warrant a remittitur; furthermore, the District Court,
which was in a position to evaluate the testimony firsthand, did not
improperly assess of the plaintiff’s injuries as uniquely cruel, as she
had completely lost the ability to have meaningful communication and
interaction with people, and, given her long life expectancy and the fact
that the physical effects of her injuries will worsen as she ages, her
psychological condition will deteriorate over time; moreover, it would
serve no useful purpose for this court to compare this verdict and this
plaintiff’s injuries to the verdicts and injuries in other cases, as the
question of damages is one peculiarly within the province of the fact
finder, and, in the absence of evident mistakes or partiality, this court
deferred to the jury’s judgment.
(Two justices concurring separately in two opinions)
Argued March 27—officially released August 11, 2017*
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff Cara L. Munn as a result of the
defendant’s alleged negligence, and for other relief,
brought to the United States District Court for the Dis-
trict of Connecticut and tried to the jury before
Underhill, J.; verdict and judgment for the plaintiffs;
thereafter, the court, Underhill, J., denied the defen-
dant’s motion for judgment as a matter of law, motion
for a new trial and motion to alter the judgment, and,
pursuant to the parties’ stipulation on collateral source
reduction, rendered an amended judgment for the plain-
tiffs, from which the defendant appealed to the United
States Court of Appeals for the Second Circuit, Walker,
Lynch and Lohier, Js., which certified certain questions
of law to this court.
Antonio Ponvert III, with whom was Alinor C. Ster-
ling, 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 Asso-
ciation of Independent Schools et al. as amici curiae.
Opinion
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
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, war-
rant 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 sys-
tem, 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.
In 2009, the plaintiff filed a diversity action in the
United States District Court for the District of Connecti-
cut, 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 mil-
lion in noneconomic damages. The award was then
reduced pursuant to a stipulated collateral source
reduction.
The defendant thereafter challenged the verdict, mov-
ing 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, includ-
ing that the plaintiff’s infection with tick-borne encepha-
litis 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 pre-
sented 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., 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 reason-
ably 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, pro-
vided 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 dur-
ing 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 docu-
ment, as well as a generic predeparture manual pro-
duced 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 ‘‘Miscel-
laneous Items,’’ along with other, seemingly optional
things like ‘‘[t]ravel umbrella’’ and ‘‘[m]usical instru-
ment.’’ None of the foregoing documents provided any
warning about insect-borne illnesses, although other
health and medical issues, such as immunizations, pre-
scriptions and sexually transmitted diseases, were dis-
cussed.
Prior to the trip, Thompson viewed the page on the
CDC website directed at travelers to China. In its discus-
sion 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, cap-
tioned ‘‘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 infor-
mation 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 informa-
tion 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 encephalitis in forested regions of north-
eastern 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 demon-
strated 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 cloth-
ing 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, teach-
ers 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 them-
selves. 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 enceph-
alitis.
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 individ-
ual. . . . 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.’’ (Inter-
nal quotation marks omitted.) Ruiz v. Victory Proper-
ties, LLC, 315 Conn. 320, 328–29, 107 A.3d 381 (2015).7
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 determi-
nation 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 . . . con-
sider the following four factors: (1) the normal expecta-
tions 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., 336–37.
Before turning to the public policy analysis, we pause
to examine the broader legal framework that encom-
passes 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 ‘‘spe-
cial 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 con-
comitant 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 Uni-
fied 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 Haw.
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. Lancas-
ter 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 stu-
dents, 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 omit-
ted.) 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 physi-
cal 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 49; 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.’’).8
‘‘[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, encom-
passing 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.
623; 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. 527, 543; 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
15, 17; off campus picnics; see Brown v. Knight, supra,
362 Mass. 350, 352; and off campus ‘‘[w]orkday’’ activi-
ties; 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, 621, 624–25 (no duty to super-
vise college students’ independently organized excur-
sion to Mount Everest during study abroad trip to
China); Concepcion v. Archdiocese of Miami, supra,
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).
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 745–46; Rupp v. Bryant, supra, 417 So. 2d
660; Doe Parents No. 1 v. State Dept. of Education,
supra, 100 Haw. 42; Doe v. DeSoto Parish School Board,
supra, 907 So. 2d 277; A.W. v. Lancaster County School
District 0001, supra, 280 Neb. 206; Marquay v. Eno,
supra, 139 N.H. 711; Mirand v. New York, supra, 84
N.Y.2d 47; Fazzolari v. Portland School District No.
1J, supra, 303 Or. 3; student suicide; Eisel v. Board of
Education, supra, 324 Md. 377; accidents caused by
students’ drunk driving; Williams v. Kentucky Dept. of
Education, supra, 113 S.W.3d 147; physical hazards;
see District of Columbia v. Royal, supra, 465 A.2d 368
(partially disassembled fence); Bellman v. Cedar Falls,
supra, 617 N.W.2d 15 (inadequately supervised golf
cart); Prier v. Horace Mann Ins. Co., supra, 351 So. 2d
267 (trash burner); Brown v. Knight, supra, 362 Mass.
350 (open fireplace); Travis v. Bohannon, supra, 128
Wash. App. 235–36 (hydraulic wood splitter); and aggrava-
tion of injuries suffered in a spontaneous medical emer-
gency during a soccer game.9 Limones v. School
District, supra, 161 So. 3d 387.
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 obli-
gated 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 cus-
tody and control against harm that the [school] antici-
pates, or reasonably should anticipate.’’ Doe Parents
No. 1 v. State Dept. of Education, supra, 100 Haw. 80.
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., 81; see also Henderson v. Simpson County
Public School District, supra, 847 So. 2d 857 (‘‘schools
have the responsibility to use ordinary care and to take
reasonable steps to minimize foreseeable risks to stu-
dents’’). 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 circum-
stances. Dailey v. Los Angeles Unified School District,
supra, 2 Cal. 3d 748; Doe v. DeSoto Parish School Board,
supra, 907 So. 2d 281; Prier v. Horace Mann. Ins. Co.,
supra, 351 So. 2d 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).10
In light of the foregoing authorities, it is beyond dis-
pute 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 educa-
tional trips abroad. The question we must consider,
then, is whether there is something unique and/or com-
pelling about foreseeable insect-borne diseases that
should excuse schools that are organizing educational
trips abroad from exercising reasonable care to mini-
mize 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 dis-
eases can pose significant threats to human health.
When insect-borne diseases present serious risks, they
become the subject of government warnings11 and
media attention.12 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 preva-
lence, 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. Further-
more, 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 informa-
tion 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.
Many measures are available to protect against
insect-borne diseases. They include staying away from
areas where the insects at issue are known to prolifer-
ate, using an appropriate insect repellent, pretreating
clothing or gear with the insecticide permethrin, cov-
ering 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;13 see footnote 11 of this
opinion; and, further, on websites maintained by other
foreign governments.14 Additionally, as the evidence in
this case demonstrated, there are many commercially
produced publications that track and compile informa-
tion for travelers about insect-borne diseases and the
areas in which they are endemic.
In light of the foregoing, we believe that the normal
expectations of participants in a school sponsored edu-
cational trip abroad, involving minor children, are that
the organizer of the trip would take reasonable mea-
sures 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 natu-
rally 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 appro-
priate.15 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.
We turn next to the second and third factors of the
analysis, namely, the public policy of encouraging par-
ticipation 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 Stat-
utes § 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 interna-
tional studies, international exchange programs and
other activities that advance cultural awareness and
promote mutual understanding and respect for the citi-
zens 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.16 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. 340–41 (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 travel-
ing abroad. Cf. Jagger v. Mohawk Mountain Ski Area,
Inc., 269 Conn. 672, 703, 849 A.2d 813 (2004) (recogniz-
ing that skiers had duty of care to fellow skiers because
‘‘requiring skiers to participate in the reasonable man-
ner prescribed by the rules of the sport actually will
promote participation in the sport of skiing’’ by remedy-
ing 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 mea-
sure 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 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 edu-
cational trips abroad, when appropriate protective mea-
sures are taken, is relatively uncommon. Again,
information about insect-borne diseases, and the meth-
ods 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. 649. Thus, recogni-
tion 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 fore-
seeable, 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, discretion-
ary 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 pre-
vail. Cf. Ruiz v. Victory Properties, LLC, supra, 315
Conn. 339–40 (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 substan-
tial factor in bringing about those injuries’’); see also
Doe v. DeSoto Parish School Board, supra, 907 So. 2d
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 pre-
ventable if a requisite degree of supervision had been
exercised’’ [internal quotation marks omitted]); Prier
v. Horace Mann Ins. Co., supra, 351 So. 2d 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 857
(although ‘‘[p]ublic schools have the responsibility to
use ordinary care and to take reasonable steps to mini-
mize 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; inter-
nal quotation marks omitted]); Mirand v. New York,
supra, 84 N.Y.2d 50 (‘‘[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’’).17
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 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 dan-
gerous and had been used without incident for forty
years); Graham v. Montana State University, supra,
235 Mont. 289 (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 negli-
gence of another student who was operating motorcy-
cle); David v. New York, supra, 40 A.D. 3d 573–74
(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).
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. 340;
see, e.g., Lawrence v. O & G Industries, Inc., supra,
319 Conn. 659–60 (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 driv-
ing 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,’’ ulti-
mately ‘‘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 sec-
ond and third public policy factors support the imposi-
tion 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 responsi-
ble for their protection and care. See, e.g., Shin v. Sun-
river 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 15 (child killed when struck by golf cart com-
mandeered by kindergarteners). Cases seemingly
favoring the defense, because they absolve defendants
of liability for injuries caused to others by insects, con-
cern 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.18 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 574. For these reasons, we
conclude that the fourth public policy factor in the
present case is essentially neutral.
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 refer-
ence to the facts of a particular case.19
Although the question of whether the defendant prop-
erly 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—cov-
ering exposed skin, applying insect repellent containing
DEET,20 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 sever-
ity 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 precau-
tions, even against remote risks, if the cost of the pre-
cautions would be relatively low’’). When schools are
fulfilling their duty to supervise students in their cus-
tody, these admonitions should be taken into account.
In sum, we conclude that the public policy of Con-
necticut 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, war-
ranted a remittitur. We conclude that the award,
although sizeable, fell within the necessarily uncertain
limits of just damages. Accordingly, we answer the sec-
ond 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 remitti-
tur 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 memoran-
dum 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 con-
tacted, 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.21 The plaintiff’s parents then
had her airlifted to New York, where she was admitted
to New York-Presbyterian Hospital.
After a week in the hospital and a month at a rehabili-
tation 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, par-
ticularly 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 com-
prehension 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 intel-
ligence.
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 accom-
modations, 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.22 . . . [The plaintiff] is not only mute; she can-
not 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 strang-
ers 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] cogni-
tive injuries are greater than simply being unable to
work through complex problems—she perceives the
right solution but cannot implement it. As the [plain-
tiff’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.)
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 exis-
tence, 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 depres-
sion as her life became less structured. The court con-
tinued: ‘‘[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 impair-
ments 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 physi-
cal 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 cob-
ble 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 other-
wise failed to fulfill their duties responsibly.’’ Rather,
the jury ‘‘struck [the court] as [diligent] attentive, seri-
ous, 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 unan-
swerable 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 emo-
tionally 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 enti-
tled 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 circum-
stance provides ‘‘a persuasive argument for sustaining
the action of the court on the motion.’’ (Internal quota-
tion 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. 280; and where the court can articulate ‘‘very
clear, definite and satisfactory reasons . . . for such
interference.’’ (Internal quotation marks omitted.) Id.,
283.
‘‘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 exces-
sive 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 partial-
ity, 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 sup-
ported 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. 281. 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., 283.
In regard to the type of damages at issue, this court
has ‘‘long held that the loss of life’s enjoyments is com-
pensable in personal injury and wrongful death cases.’’
Mather v. Griffin Hospital, supra, 207 Conn. 150. ‘‘Dam-
ages may be awarded for pain and suffering, past, pre-
sent 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 con-
clude 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 other-
wise compromised, but only that its verdict was improp-
erly 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 circum-
stances 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 posi-
tion 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. Accord-
ingly, 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 combina-
tion of an inability to speak, control her facial expres-
sions and move her fingers effectively, she has
completely lost the ability to have meaningful communi-
cation 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 situa-
tion, 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 pas-
sions 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.23 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 omit-
ted.) 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 appar-
ently 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. 34. In the absence of evident
mistakes or partiality, however, we defer to the jury’s
judgment, as the District Court did here. For the forego-
ing reasons, we answer the second certified question
in the negative.
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.
* August 11, 2017, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
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.’’
2
For a more complete discussion of the underlying facts, see Munn v.
Hotchkiss School, 24 F. Supp. 3d 155 (D. Conn. 2014).
3
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.
4
Throughout the record, Mount Panshan is referred to variously as ‘‘Mount
Pan,’’ ‘‘Mt. Pan’’ and ‘‘Panshan mountain.’’
5
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 testi-
mony 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.
6
As the District Court explained, an exurban landscape is ‘‘a traditionally
rural community with growing housing density created by commuters to
the cities.’’
7
We pause to emphasize that we are called upon to undertake the second
determination only. The jury in this case determined, on the evidence pre-
sented 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 plan-
ners 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).
8
This court has recognized that children outside of their parents’ supervi-
sion 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. 333 (‘‘[a]s to
the care required of others in relation to children, the . . . propensity of
children [to disregard dangerous conditions] has been taken into consider-
ation in evaluating the negligence of these others’’ [internal quotation
marks omitted]).
9
We cite these examples merely to demonstrate the range of circum-
stances in which the duty may apply, and not to suggest that we necessarily
would extend the duty to all of the circumstances enumerated.
10
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 748.
11
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/dis-
eases/african-sleeping-sickness-african-trypansosomiasis (last visited
August 7, 2017) (warning travelers to sub-Saharan Africa of African trypano-
somiasis spread by tsetse flies), ‘‘Chagas Disease (American Trypanosomia-
sis),’’ 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) (warn-
ing 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/dis-
eases/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 mosqui-
toes), ‘‘Ross River Virus Disease,’’ available at https://wwwnc.cdc.gov/travel/
diseases/ross-river-virus-disease (last visited August 7, 2017) (warning travel-
ers 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 vis-
ited August 7, 2017) (warning travelers to Africa, Europe, Middle East,
portions of Asia, and North America of West Nile virus spread by mosqui-
toes), ‘‘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.
12
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-cases-
were-transmitted-in-miami-beach-florida-governor-says.html?_r=0 (last vis-
ited 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-a-
bad-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).
13
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.’’
14
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).
15
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 organiz-
ing 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’’).
16
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-pro-
grams (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) (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.
17
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 precau-
tions 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 dis-
charge 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. 703. 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).
18
See footnote 7 of this opinion.
19
‘‘[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 particu-
larly fact dependent and case specific, representing a [factual] judgment
about a course of events . . . that one often makes outside any legal con-
text. 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. 212.
20
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 mea-
sures, she would not have contracted tick-borne encephalitis. The jury appar-
ently credited this testimony.
21
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.
22
At trial, the plaintiff testified by typing answers to questions into a
machine, which would convert the written answers into a computer gener-
ated voice.
23
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, Superior Court, judicial district of Water-
bury (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).