Munn v. Hotchkiss School

 MUNN v. HOTCHKISS SCHOOL—SECOND CONCURRENCE
ESPINOSA, J., concurring. In view of the questions
that the United States Court of Appeals for the Second
Circuit chose to certify to this court, I am compelled
to agree with the majority’s answers to those questions.
Specifically, I agree that (1) it is the role of the legisla-
ture and not of this court to exempt schools from liabil-
ity for remote harms such as insect-borne1 disease that
may befall students on study abroad programs, and (2)
we must defer to the determination by the United States
District Court for the District of Connecticut that the
jury verdict, while disquietingly large, is not so clearly
the result of partiality, prejudice, mistake or corruption
that remittitur is required. I write separately to express
my hope that the Court of Appeals will revisit its legal
determination that there was sufficient evidence to sup-
port the jury’s finding that the injuries suffered by the
plaintiff Cara L. Munn2 were reasonably foreseeable;
see Munn v. Hotchkiss School, 795 F.3d 324, 329 (2d
Cir. 2015); a question on which that court has not sought
our counsel.
I
I begin by reviewing the relevant legal standards. As
the Court of Appeals recognized; id., 329–30; our law
permits a jury to find that a harm is foreseeable only
if ‘‘an ordinary person in the defendant’s position, know-
ing what the defendant knew or should have known,
would anticipate that harm of the general nature of that
suffered was likely to result . . . .’’ (Emphasis added;
internal quotation marks omitted.) Sic v. Nunan, 307
Conn. 399, 407, 54 A.3d 553 (2012). ‘‘[D]ue care does
not require that one guard against eventualities which
at best are too remote to be reasonably foreseeable.’’
(Internal quotation marks omitted.) Id., 409. ‘‘Accord-
ingly, the fact finder must consider whether the defen-
dant knew, or should have known, that the situation at
hand would obviously and naturally, even though not
necessarily, expose [the plaintiff] to probable injury
unless preventive measures were taken.’’ (Emphasis
added; internal quotation marks omitted.) LePage v.
Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002); see
also id. (‘‘ ‘ordinary care has reference to probabilities
of danger rather than possibilities of peril’ ’’); Lodge v.
Arett Sales Corp., 246 Conn. 563, 575–76, 717 A.2d 215
(1998) (‘‘[i]nasmuch as virtually all harms, in hindsight,
are literally foreseeable . . . the law has rejected a
literal foreseeability test as the fulcrum of duty’’ [cita-
tion omitted; internal quotation marks omitted]). Negli-
gence is, therefore, to be distinguished from an
accident, insofar as ‘‘an accident is an unexpected hap-
pening [whereas] negligence is based on something rea-
sonably to be anticipated.’’ Higgins v. Connecticut
Light & Power Co., 129 Conn. 606, 613, 30 A.2d 388
(1943).
Consistent with these principles, this court has found
that a harm was not reasonably foreseeable, as a matter
of law, when the injury, although not beyond the realm
of the conceivable, could only be fairly characterized
as highly improbable. See, e.g., Sic v. Nunan, supra,
307 Conn. 409 (‘‘being thrust into the travel lane of
oncoming traffic while one is lawfully stopped awaiting
an opportunity to turn simply does not fall within the
category of foreseeable risk’’); Lodge v. Arett Sales
Corp., supra, 246 Conn. 577 (‘‘the brake failure of a
negligently maintained fire engine is beyond the scope
of the reasonably foreseeable risks created by the trans-
mission of a false alarm’’); Schiavone v. Falango, 149
Conn. 293, 298, 179 A.2d 622 (1962) (not reasonably
foreseeable that unattended child would climb and fall
from exterior stairway railing); Noebel v. Housing
Authority, 146 Conn. 197, 201–202, 148 A.2d 766 (1959)
(‘‘[i]t is unreasonable as a matter of law to charge the
defendants with anticipation of the likelihood that . . .
someone in a hurry might try to jump over [a fence
comprised of rubber-covered wooden stakes], misjudge
its height or his own agility, and fall’’); Goldberger v.
David Roberts Corp., 139 Conn. 629, 630, 96 A.2d 309
(1953) (jury could not reasonably find it foreseeable
that teenage camper, described as ‘‘ ‘problem child,’ ’’
having been instructed to dispose of wooden stick and
then left unsupervised, would swing stick in tent,
resulting in broken fragment striking and injuring
younger boy).3 As I explain in the next part of this
concurring opinion, none of the risks that we deemed
to be legally unforeseeable in the cited cases was as
demonstrably and quantifiably remote as the risk that
the plaintiff would contract tick-borne encephalitis
(TBE) or some other serious insect-borne illness during
her brief field trip to Mount Panshan (Mt. Pan) in the
Tianjin province of China.
II
A
The record reveals the following undisputed facts.
The plaintiff was the first known United States citizen—
and quite possibly the first foreign traveler—ever to
contract TBE in China. She caught the disease at a
popular tourist destination within commuting distance
of Beijing—one that receives over 600,000 visitors each
year, including more than 50,000 foreign tourists—in a
province in which no human case had ever been
reported.
TBE is an extremely rare disease. In total, only 10,000
to 12,000 individuals worldwide contract the disease
each year. Of those cases, the vast majority occur in
Russia and central Europe. In China, the primary TBE
risk in 2007 was understood to exist along China’s far
northern borders with Russia and Mongolia, hundreds
of miles north of Mt. Pan. Depending on which disease
distribution map one credited, Tianjin province was
either completely outside or just on the outskirts of the
recognized endemic area.
The plaintiff’s expert testified that, even within
endemic areas, the risk to travelers is low unless exten-
sive outdoor activities are planned. Immunization
against the disease is not available in the United States.
In countries in which vaccination was available in 2007,
it was recommended only ‘‘ ‘for prolonged stays that
include hiking, camping or similar outdoor activities
in rural wooded regions of risk areas.’ ’’ Notably, the
itinerary of the defendant, The Hotchkiss School, did
not include any prolonged activities in such environ-
ments. At Mt. Pan, the students followed a paved path
up the mountain, and they were to have come down in
a cable car. Jean Yu, the defendant’s faculty trip leader,
testified that she permitted the plaintiff and a few other
students to walk back down the mountain only after
they had promised to remain on that same paved path.
To conclude that the plaintiff’s injuries were foresee-
able, then, one would have to find, among many other
things, that it was likely that students would seek and
receive permission to walk back down the mountain,
disobey safety instructions, leave the pathway, and
bushwack their way to the bottom.4 Such an inference
is precluded by our conclusion in Goldberger v. David
Roberts Corp., supra, 139 Conn. 632–33, that a counselor
could not, as a matter of law, be expected to foresee
that a thirteen year old camper would ignore safety
instructions while outside adult supervision, resulting
in unlikely injuries.
Even in areas in which TBE is endemic, the vast
majority of ticks do not carry the disease. If bitten by
an infected tick, a person has just a 0.005 to 0.001 chance
of contracting TBE. Among those infected, most do
not suffer any neurological injury. In other words, the
probability that one of the defendant’s students, having
requested permission to walk down Mt. Pan and promis-
ing to remain on the path, would disregard her teacher’s
warnings, leave the trail, become lost in the vegetation,
get bitten by one of the rare infected ticks, contract
the disease, and suffer permanent injury was infinitesi-
mally low.
The statistic that I find most remarkable comes from
plaintiff’s exhibit 34, a publication of the Centers for
Disease Control and Prevention (CDC), Morbidity and
Mortality Weekly Report dated March 26, 2010, and
entitled ‘‘Tick-Borne Encephalitis among U.S. Travelers
to Europe and Asia—2000–2009.’’ In that report, the
CDC, having reviewed all laboratory records for the
prior decade, concluded that only five United States
travelers had contracted TBE while overseas and that
the plaintiff was the first ever to have contracted the
disease in China. On the basis of its research, the CDC—
which the parties agree is the most authoritative source
on such matters—reached the following conclusion:
‘‘For unvaccinated travelers to areas in which TBE is
endemic, the estimated risk for TBE during . . . trans-
mission season is approximately one case per 10,000
person months.’’ One case per 10,000 months. In other
words, if the plaintiff and ten thousand of her class-
mates spent the full month of July living in the semi-
rural area around Mt. Pan, only one of them would
likely contract TBE. The plaintiff herself could have
lived on Mt. Pan for more than one millennium before
she would have been expected to catch the disease.
She was there for just a few hours. By my calculations,
she had less than a one in two million chance of con-
tracting TBE during her brief field trip to Mt. Pan,5
lower even than her chance of being struck and killed by
a meteorite.6 If that was foreseeable, then it is difficult to
imagine any misfortune that would not be.7
It bears emphasizing in this respect that the only
reason that it was even conceivably foreseeable that
an American tourist would contract TBE while sightsee-
ing at Mt. Pan was because TBE may have been identi-
fied as a risk on the CDC’s China webpage. But see
part II B 1 of this concurring opinion. There was no
evidence or testimony at trial, however, indicating that
the various miscellaneous diseases listed near the end
of a CDC travel advisory page occur with any particular
frequency, nor that a disease that the CDC identifies
as present in a country or a region necessarily poses a
risk throughout that country or region. China is a large
country, with a landmass roughly the size of the United
States. Thus, the fact that a disease such as TBE occurs
somewhere in the northeastern quadrant of China does
not mean that an affliction found near the Siberian
border necessarily poses a risk in Beijing or Tianjin,
any more than the Zika virus endemic to south Florida
threatens tourists visiting Kansas City or Saint Louis,
which also are located in the southeastern quadrant of
our country.
In this instance, the CDC itself actually quantified the
risk involved, indicating that it was minuscule. There
simply was no basis, then, on which a jury reasonably
could have concluded that it was likely or probable that
the plaintiff would contract TBE8 at Mt. Pan, as our law
requires before liability for negligence will lie.
B
In light of the abundant, authoritative, and uncontro-
verted evidence that TBE is an extremely rare disease,
one that posed a negligible risk to the hundreds of
thousands of foreign visitors to the Mt. Pan area as of
2007, the Court of Appeals reached the only reasonable
conclusion: ‘‘no one could have expected that [the plain-
tiff] would contract TBE.’’ Munn v. Hotchkiss School,
supra, 795 F.3d 332. One would have thought that would
have ended the inquiry, that the fact that no one could
have expected a certain outcome would, almost by defi-
nition, render that outcome unforeseeable.9 Indeed, I
am not aware of a single case in any jurisdiction in
which a risk that was as quantifiably improbable as this
was deemed to be reasonably foreseeable.
But they say that on a clear judicial day you can
foresee forever; Thing v. La Chusa, 48 Cal. 3d 644, 668,
771 P.2d 814, 257 Cal. Rptr. 865 (1989); and both the
District Court and the Court of Appeals were able to
persuade themselves that the plaintiff’s injuries were
sufficiently probable to sustain the jury’s verdict. In
declining to hold as a matter of law that the plaintiff’s
injuries were unforeseeable, those courts relied primar-
ily on the facts that (1) the defendant had actual fore-
knowledge of the risk of TBE in northeast China; Munn
v. Hotchkiss School, supra, 795 F.3d 330; and (2) a
finding of foreseeability was not unreasonable in light
of the relatively painless measures that could have been
taken to protect the plaintiff.10 Munn v. Hotchkiss
School, 24 F. Supp. 3d 155, 179, 198 (D. Conn. 2014). I
consider each theory in turn.
1
I first consider the primary theory on which the Court
of Appeals relied, namely, that the defendant had actual
foreknowledge that TBE and other serious insect-borne
diseases posed a risk to students travelling to Mt. Pan.
There is no evidence in the record that any employee
of the defendant ever saw an authoritative government
warning indicating that TBE was endemic to Tianjin
or Mt. Pan. The only employee of the defendant who
allegedly saw any CDC warning relating to the presence
of TBE anywhere in China was international travel pro-
grams director David Thompson. At trial, Thompson
initially testified that, at the time of the trip, he saw a
warning on the CDC’s China webpage indicating that
TBE was present in northeast China. He immediately
qualified this testimony, however, explaining that the
CDC website carried such a warning at the time of trial
but that he did not recall whether any references to
TBE had been posted prior to the June, 2007 trip.
Thompson also testified that, in any event, the CDC
warning did not mention Tianjin and that he did not
believe that Tianjin was encompassed by the CDC’s
definition of ‘‘Northeastern China,’’ which he under-
stood to cover only China’s far northern border areas
with Russia and Inner Mongolia.11 Given his lack of
recollection, he ultimately concluded that ‘‘it might be
useful to see what it is that the CDC said at that time
because—it’s been so long, and I don’t want to be inac-
curate.’’
In response, the plaintiff’s counsel showed Thomp-
son defendant’s exhibit 546, which was a version of the
CDC’s China webpage that had been archived on the
Internet Archive’s Wayback Machine. See generally
http://archive.org/web/web.php (last visited July 27,
2017). The webpage, which had been archived in
December, 2007, indicated that it was created and last
modified on August 1, 2007, nearly two months after
the defendant’s trip commenced and more than three
months after Thompson and Yu provided students and
their parents with a link to the CDC website and other
health-related trip information. Confronted with this
August, 2007 document stating that ‘‘[TBE] occurs in
forested regions in northeastern China,’’ and asked
whether ‘‘that’s something you knew at the time from
reading the material,’’ Thompson replied: ‘‘Yes, I believe
I would have seen that.’’ Thompson never expressly
testified that he saw such a warning on the CDC website
prior to the June, 2007 trip. He simply acknowledged
that he would have seen it at the time that it was posted
on the CDC website.
The fact that the CDC webpage was not created until
August 1, 2007, precludes any possibility that Thompson
reviewed that particular webpage at an earlier date. His
tepid acknowledgement that he ‘‘would have seen’’ the
August, 2007 report at some unspecified time, which
followed repeated statements by Thompson that he did
not recall whether he had seen any warnings about TBE
prior to the trip, is the sole evidence of record to support
the conclusion that any employee of the defendant saw
a TBE warning on an authoritative government website
prior to the trip. Moreover, it is undisputed that the
April 13, 2007 version of the CDC Travelers’ Health page
covering East Asia, including China, did not identify
TBE as a disease endemic to that region. Notably, that
webpage did specifically identify various other dis-
eases, such as avian influenza, malaria, and severe acute
pulmonary syndrome, also known as SARS, as being
present in China. One week later, on April 21, 2007, the
defendant sent health information to trip participants
and their families and referred them to the CDC website.
Still, the Court of Appeals was of the opinion that,
‘‘while the August 1, 2007 advisory postdates the trip,
it is possible that a similar advisory was on the website
before’’ the students embarked for China. Munn v.
Hotchkiss School, supra, 795 F.3d 330. That is certainly
one possibility, that sometime between April 13 and
early June, 2007, the CDC suddenly changed its assess-
ment of the risk of TBE in China, despite the fact that
no foreign traveler had contracted the disease during
that time. If that was the case, none of the plaintiff’s
travel health experts was able to explain what precipi-
tated the new risk assessment at that time. A second
possibility, of course, is that the CDC did not update its
assessment until August 1, 2007, right after the plaintiff’s
blood had tested positive for TBE antibodies.
Although the evidence was not before the trial court,
we now know that the latter, more plausible scenario
is what actually happened. On direct appeal, the defen-
dant asked the Court of Appeals to take judicial notice
of the fact that the same database on which the August,
2007 CDC webpage was archived also contains a version
of that webpage that was created on May 25, 2007,
two weeks before the students left for China, and that
remained active and was archived on June 25, 2007,
two weeks after the trip commenced. See id.; see also
https://web.archive.org/web/20070625010918/
wwwn.cdc.gov/travel/destinationChina.aspx (last vis-
ited July 27, 2017). That webpage makes no mention
of TBE as a risk in China. In reality, then, Thompson
could not possibly have seen the warning contained in
the August 1, 2007 webpage prior to the trip, because
the version of the website that was accessible to the
public before and during the trip did not contain any
such warning.12
The Court of Appeals denied the defendant’s eleventh
hour attempt to supplement the record with a copy of
the May 25/June 25 webpage. See Munn v. Hotchkiss
School, supra, 795 F.3d 330. The court did so despite the
fact that the federal courts—both trial and appellate—
routinely take judicial notice of CDC websites,13 and
also of the Internet Archive’s Wayback Machine as reli-
able evidence of how a particular website appeared on
a particular date.14 In any event, in light of Thompson’s
clear hesitation to affirmatively testify that he had seen
any reference to TBE in China prior to the trip, the
Court of Appeal’s speculation that there might possibly
have been some reference to that effect on the CDC
website seems a rather slim reed on which to hold the
plaintiff’s injuries foreseeable.
2
The District Court, in concluding that there was suffi-
cient evidence to sustain a finding of foreseeability,
also applied the Learned Hand formula, pursuant to
which reasonable care is required only if the burden of
adequate precautions is less than the gravity of an injury
discounted by the probability that the injury will occur.
See United States v. Carroll Towing Co., 159 F.2d 169,
173 (2d Cir. 1947). The District Court apparently was
of the view that, notwithstanding the remote probability
of a tourist contracting TBE or other serious insect-
borne disease at Mt. Pan, the defendant was obliged to
take precautionary measures because (1) the potential
consequences of diseases such as TBE are severe, and
(2) the burdens of prevention—warning or requiring
students to wear long sleeved shirts and long pants,
apply insect repellants containing diethyltoluamide
(DEET), and perform periodic tick checks—appear
‘‘minimal.’’ Munn v. Hotchkiss School, supra, 24 F. Supp.
3d 198.
It is not clear to me that Connecticut has embraced
the law and economics definition of foreseeable harm
as expressed in the Learned Hand formula.15 As I have
explained, our cases consistently have defined a fore-
seeable harm simply as one that is likely to occur or that
reasonably can be anticipated, without any reference to
the burdens of prevention or the magnitude of the risk
involved. Even if we were to assume that those consid-
erations are relevant to the foreseeability question,16
however, I do not agree that they were sufficient to
overcome the infinitesimally low probability that one of
the defendant’s students would contract TBE at Mt. Pan.
a
Turning first to the magnitude of the risk prong of
the equation, no one disputes that TBE is a potentially
serious disease. Although many cases are entirely
asymptomatic, and many others result in a full recovery,
for individuals like the plaintiff, who are unlucky
enough to contract a serious case, the long-term effects
are devastating. But the reality is that if a student had
merely stubbed her toe while walking down Mt. Pan,
we would not be having this conversation. Most of the
risks about which travelers worry—and sue—when vis-
iting exotic, foreign destinations are ones that carry
potentially serious, if not fatal, consequences. These
risks run the gamut from tropical diseases to medical
emergencies, food poisoning, street crime, terrorism,
civil unrest, transportation accidents, extreme weather
events, animal attacks, and random imprisonment. The
list of remote but serious risks is, literally, endless.
Consider just a few of the freak accidents, illnesses,
and injuries that might befall a visitor to China. In recent
years, tourists to China have been mauled to death by
zoo tigers,17 caught up in airport riots,18 murdered by
Uighur terrorists,19 robbed in bars,20 injured under col-
lapsing bridges,21 and killed in various ways at scenic
lookout points.22 Chinese authorities have imprisoned
tourists for using their cellphones on airplane mode23
and for watching a British Broadcasting Corporation
documentary.24 A visitor to the country could fall victim
to a novel strain of avian flu25 or to an ancient affliction
such as the bubonic plague.26 They could be poisoned
by street food27 or contaminated sashimi;28 knocked off
the Great Wall of China29 or stoned by Buddhist monks.30
In bus accidents alone, foreign travelers have been
injured or killed when their tour buses burst into
flames,31 plummeted into a valley,32 fell off a cliff,33 or
were buffeted by falling rocks during an earthquake.34
If a school such as the defendant is required to not
only warn students about the risk of a disease as rare
as TBE but also to protect them from such a risk while
travelling abroad, then it must take comparable precau-
tions with respect to all of the other singular risks that
attend foreign travel. As the Court of Appeals recog-
nized in certifying the duty question to this court, ‘‘this
case is likely to have repercussions beyond this particu-
lar fact pattern as it implicates broad questions of Con-
necticut public policy.’’ Munn v. Hotchkiss School,
supra, 795 F.3d 334.
The defendant’s staff could have spent many pages
and many hours warning their students about and pre-
paring them against these and numerous other serious
but undeniably remote risks, not to mention the myriad
of more mundane dangers that confront visitors to
China—everything from air pollution and motor vehicle
accidents to sunburn and sexually transmitted diseases.
It is difficult to know how the risk of a rare tick-borne
illness would have rated in this parade of horribles, but
one suspects that the typical teenager would have paid
it less mind than some of the more outlandish dangers.
As the amici wisely caution, ‘‘[e]ven if educators could
warn of and guard against every such risk, the informa-
tion overload would leave students and parents in a
maze of warnings . . . . [Such a requirement] would
have the . . . negative effect of . . . burying warnings
about imminent risks among a litany of other warnings
. . . .’’ Indeed, requiring that trip planners lecture teen
travelers about every possible foreseeable risk would
likely have the unintended consequence of jeopardiz-
ing student safety by diverting their attention from the
more credible risks.
Even under an economics based approach, then, it
makes no sense to require that a school warn and pre-
pare its students against each and every remote but
potentially serious risk that awaits international travel-
ers. The task would be as hopeless as it would be self-
defeating. This court has recognized as much in the
closely related context of medical informed consent,
wherein a physician need not disclose to patients every
remote risk potentially associated with a medical proce-
dure but only those deemed sufficiently likely as to be
material. See Pedersen v. Vahidy, 209 Conn. 510, 517–
23, 552 A.2d 419 (1989). Put differently, the Learned
Hand formula may make sense in the context of
determining whether reasonable care requires the adop-
tion of an individual precautionary measure. We must
be wary, however, in cases such as this that sound in
informed consent, lest the need to warn and protect
participants against each individual remote but poten-
tially serious outcome has the aggregate effect of inur-
ing us to more substantial risks or discouraging
participation in generally safe and wholesome
activities.
b
I turn next to the other side of the Learned Hand
equation, the question of whether the protective mea-
sures necessary to prevent students from contracting
TBE were truly minimal and unobtrusive. One challenge
in addressing this question is that the jury, in finding
that the defendant failed to protect the plaintiff, did
not specify what protective measure or measures the
defendant should have adopted. The District Court, in
upholding the verdict, speculated that merely ‘‘pro-
vid[ing] students with simple, accurate advice about
the risk of insect-borne disease and then a quick, gentle
reminder to apply bug spray before hiking’’ might have
been sufficient to satisfy the defendant’s duty to the
plaintiff. Munn v. Hotchkiss School, supra, 24 F. Supp.
3d 198 n.24. The truth, however, is that, throughout the
trial, the plaintiff’s counsel repeatedly reminded the
jury that the defendant does not allow its male students
to attend class without jackets and ties and that teach-
ers send students back to their rooms if they show up
to the school’s annual Eco Day wearing inappropriate
footwear. In the same breath, counsel told the jury that
the defendant had a responsibility ‘‘to be sure [students]
wear the right type of clothing, to be sure that they use
. . . effective repellent, to be sure that they stay out of
the woods without using these precautions . . . .
These are not difficult precautions to enforce.’’ (Empha-
sis added.) The plaintiff’s counsel also emphasized how
governmental agencies mandate that their employees
use insect disease precautions in the field. Thus, while
one can always speculate, the most reasonable reading
of the verdict, in light of how the plaintiff argued the
case, is that the jury found that the defendant’s employ-
ees were negligent in not forcing the students to (1)
wear long pants and long sleeved shirts, apply DEET,
and conduct tick checks, or (2) remain on the bus if
they refused. This conclusion is bolstered by the fact
that one of the plaintiff’s witnesses, another student
who attended the trip, testified that the defendant’s
teachers not only instructed the students to bring insect
repellant on the trip but also repeatedly reminded them
to use it while in China. So that clearly was not enough.
Of course, in retrospect, any parent, familiar with the
facts of the present case and the terrible injuries that
the plaintiff has sustained, would think it a small price
to pay to make their child use insecticide and wear
protective clothing. If I thought it at all likely that my
child would suffer such a fate, then no protective mea-
sure would be too onerous. But the relevant question
is whether a reasonable school or parent, ex ante, know-
ing that the chance of contracting TBE was less than one
in two million and the chance of suffering permanent
damage lower still, would have required high school
students to take such precautions. I would not.
There was undisputed testimony that it was uncom-
fortably hot when the students visited Mt. Pan in the
late morning or early afternoon of June 23, 2007, and
recorded weather data confirm that temperatures in
the region approached 90 degrees Fahrenheit on that
day.35 It is difficult enough to get teenagers to wear long
pants and long sleeved shirts in March or November,
let alone in the heat of the summer. To force them
to swap out their shorts and tank tops for jeans and
turtlenecks, merely to protect against diseases that
were virtually unknown at Mt. Pan and that no tourist
had ever contracted, strikes me as both unreasonable
and unrealistic. Surely the risk that a student would
have suffered dehydration, hyperthermia, or heat
exhaustion from climbing a mountain in fall clothing on
a 90 degree June day was a far more pressing concern.
What about the bug spray? It is true that DEET is
deemed by the federal government to be safe for human
use.36 As discussed at trial, however, not all parents
are comfortable with putting such a strong chemical
insecticide on their children, at least when not abso-
lutely necessary, and many families decline to use
DEET even in areas in which serious insect-borne ill-
nesses are pervasive. Indeed, there was uncontested
expert testimony at trial that even United States Marines
serving in tropical environments who are under direct
orders to apply DEET routinely refuse to do so and
risk malaria rather than subject themselves to such a
‘‘major intervention.’’
Nor can we consider these costs in a vacuum. The
jury verdict in this case, as affirmed by the District Court
and the Court of Appeals, stands for the proposition that
a school has a duty to warn and protect its students
against any remotely foreseeable harm that might befall
them while travelling abroad or, at least, any remotely
foreseeable serious risk, the existence of which may
be readily and reliably determined. As I have explained,
the range of such risks is virtually limitless. So too are
the protective measures that might be taken to shield
children from all those threats.
As evidenced by the literature that the defendant’s
trip chaperones provided to the students and their fami-
lies, simply protecting students from the most common
risks faced by overseas travelers requires constant vigi-
lance toward a broad range of threats. Students travel-
ling to China were cautioned, among many other things,
to: keep a low profile; never leave their possessions
unattended; report unattended bags to the police; never
agree to carry a package for anyone; carry emergency
phone numbers, extra cash, health insurance informa-
tion, and a separate copy of identification documents;
not carry too much cash or too many credit cards; avoid
dangerous areas, short cuts, narrow alleys, and poorly
lit streets; try not to be out on the streets alone at night;
ignore negative comments and pick-up lines; beware
con artists, pickpockets, and beggars; be especially cau-
tious at train stations, shopping areas, and public trans-
portation; be wary while making phone calls; abstain
from intimate sexual contact; carry one’s own supply
of spermicidal latex condoms in a cool, dry place; be
wary of foreigners who trade on stereotypes of Ameri-
can sexual values; remember that blood transfusions
may carry a risk of HIV infection; prepare for tempera-
ture changes and rain; be mindful of feelings of home-
sickness, boredom, fatigue, physical discomfort,
depression, helplessness, and hostility to the host cul-
ture; dress respectably and appropriately; and try to
maintain a healthy mind and body.
Then consider all of the various remote risks for
which special precautions could be taken. The defen-
dant might have asked the students to wear bee masks
on Mt. Pan, given the serious threat posed by giant
killer bees in parts of northern China.37 Teachers could
have roped students together like mountain climbers
atop the Great Wall to prevent a fatal fall, or made them
take all their meals at the Tianjin McDonald’s, lest they
be sickened by the local cuisine.
Returning to the point I made before, none of those
safety measures, standing alone, is especially oppres-
sive relative to the serious risk of injury or death that
it might prevent. Taken together, however, all of the
minor protective measures that a school might impose
in order to shield students from the plethora of remote
risks that one confronts when travelling abroad would
be oppressive. If my children were travelling to the
hypothetical malaria-ridden swamp to which the parties
referred throughout trial, then of course I would want
them to take the appropriate prophylactic measures,
regardless of side effects and regardless of inconve-
nience. But I would not expect them to visit major
tourist attractions on a hot summer day covered in
chemical sprays and cocooned in all manner of protec-
tive clothing, merely to ward off perils that might impact
a few extremely unlucky individuals each year in a
country of more than one billion people.
c
Finally, if we are going to weigh the economic costs
and benefits associated with preventative measures,
then we also must take into account the fruits that flow
from letting adolescents engage in activities that have
not been completely sanitized of risk. Study abroad
and outdoor activities such as hiking are attractive and
beneficial precisely because they are attended by cer-
tain risks, and challenge participants in certain ways,
beyond what students normally confront in the con-
trolled school environment. See K. Burch, ‘‘Going
Global: Managing Liability in International Externship
Programs—A Case Study,’’ 36 J.C. & U.L. 455, 495
(2010). In this case, for instance, part of the defendant’s
curriculum was to encourage groups of students to
venture into Tianjin without adult supervision, forcing
them to use their emergent Chinese language skills to
find the restaurant where the group was to dine that
evening. If schools are forced to sterilize such activities
to the point that even the most remote risks have been
eliminated, then we will deprive our youth of much of
the opportunity for independence, experiential learn-
ing, and personal growth that comes from surmounting
such challenges—not to mention taking all the fun out
of them. As one legal scholar has explained, ‘‘[t]he
objective of focusing on safety concerns related to study
abroad is not to offer a risk-free foreign experience.
That goal is no more desirable than the idea that car
manufacturers should produce risk-free vehicles so
crash-worthy and slow that no one could ever be
harmed in an auto-accident and no suit ever filed. Edu-
cation inevitably entails risks, particularly when it takes
place in another country. Exposing students to some
of those risks is part of the educational process. . . .
American program providers should not operate super-
cautious foreign programs . . . .’’ (Footnotes omitted.)
V. Johnson, ‘‘Americans Abroad: International Educa-
tional Programs and Tort Liability,’’ 32 J.C. & U.L. 309,
315–16 (2006).
Of course, as parents, we would love to be able to
put our children into all sorts of challenging, character
building situations, yet have them always walk away
successful and unscathed. But life is not a Disney movie,
and that is not a realistic expectation. As both this
court and others frequently have observed, it would be
unwise, if not impossible, to impose such a duty on
schools and related entities. See Goldberger v. David
Roberts Corp., supra, 139 Conn. 631–32; see also Gustin
v. Assn. of Camps Farthest Out, Inc., 267 A.D. 2d
1001, 1003, 700 N.Y.S.2d 327 (1999) (‘‘[i]n such a setting,
constant supervision is neither feasible nor desirable
because [o]ne of the benefits of such an institution is
to inculcate self-reliance in the [participants] which an
overly protective supervision would destroy’’ [internal
quotation marks omitted]).
C
In light of these considerations, it is no surprise that
courts in other jurisdictions, considering claims arising
from improbable injuries sustained on school trips,
have not hesitated to hold such risks unforeseeable as
a matter of law. See, e.g., Mancha v. Field Museum of
Natural History, 5 Ill. App. 3d 699, 701, 283 N.E.2d
899 (1972) (affirming dismissal of action because ‘‘[i]t
cannot be said that an assault on a [twelve year old]
boy in the Field Museum is an occurrence which a
reasonable man would anticipate’’); David v. New York,
40 A.D. 3d 572, 573, 835 N.Y.S.2d 377 (2007) (direct-
ing judgment dismissing complaint arising from unprec-
edented injury during hay ride). I would encourage the
Court of Appeals to reach this same conclusion.
Barring that, I hope that our legislature will follow
the example of California38 and confer full or partial
statutory immunity39 from suit on study abroad and
related programs, in furtherance of Connecticut’s well
established policy of promoting and expanding interna-
tional education and foreign study programs. See Gen-
eral Statutes § 10-27. There is a reason why more than
thirty organizations and associations representing in
excess of 20,000 colleges, universities, graduate pro-
grams, private secondary schools, public boards of edu-
cation, international education and exchange programs,
camps, and outdoor experience programs all have
appeared as amici curiae in this case, in support of
the defendant’s position. These organizations recognize
that this case invariably will come to stand for the
proposition that foreign study—and perhaps all extra-
curricular—programs must not only warn of, but also
affirmatively protect participants from, even the most
remote risks and dangers. Such an outcome will
adversely impact the ability of these programs to pro-
vide these tremendous opportunities in Connecticut,
‘‘radically and negatively impacting the number and
type of international student experiences schools will
continue to offer their students.’’ As the Court of
Appeals recognized, ‘‘[i]f the award stands, it would set
an important precedent for negligence cases arising
from educational trips. . . . This case is likely to
encourage future victims of unusual accidents on edu-
cational trips to seek compensation, placing a heavy
financial burden on trip providers.’’ (Citation omitted.)
Munn v. Hotchkiss School, supra, 795 F.3d 333. Even the
District Court, which generally rejected the defendant’s
public policy arguments, conceded that ‘‘some schools
may cancel programs’’ as a result of the verdict in this
case. Munn v. Hotchkiss School, supra, 24 F. Supp. 3d
198. I fear that the impact will be especially harsh on
our less privileged students and those who attend
underfunded public schools.
I understand that other juries in other cases may not
be as willing to find that other extremely improbable
tragedies are foreseeable. But surely the unprecedented
verdict in this case will attract the attention of potential
plaintiffs who have suffered unlikely injuries while
abroad. And surely the fact that the Court of Appeals
has held such an ‘‘undeniably remote’’ injury to be fore-
seeable; Munn v. Hotchkiss School, supra, 795 F.3d 332;
will place additional pressure on future defendants to
settle such claims, regardless of their merits.
In short, other schools and programs will not have
the luxury of ignoring equally remote risks, in the hope
that other juries might be less generous or that other
courts might draw firmer limits on foreseeability. Pro-
viders will have to conduct their affairs, plan their itiner-
aries, and insure themselves as if they are strictly liable
for any and all remote risks that might come to pass.
Students will be the worse for it. We conduct our affairs
in the shadow of the law, and this case casts a long
shadow indeed.
1
As the defendant, The Hotchkiss School, notes, the certified question is
misleading insofar as ticks, the disease vector at issue in the present case,
are not insects but arachnids, cousins of the spider and the mite. Following
the convention that has been established in this case, I will use the term
‘‘insect-borne’’ as synonymous with the more accurate—but less ceremoni-
ous—term ‘‘bug-borne.’’
2
Munn’s parents, Orson D. Munn III and Christine Munn, were also named
as plaintiffs in this matter. For simplicity, I refer to Cara L. Munn alone as
the plaintiff.
3
The Court of Appeals, relying on our decision in Ruiz v. Victory Proper-
ties, LLC, 315 Conn. 320, 107 A.3d 381 (2015), a premises liability case,
concluded that Connecticut courts construe foreseeability especially broadly
as it relates to children. Munn v. Hotchkiss School, supra, 795 F.3d 330. All
that we stated in Ruiz, however, is that the degree of care that is required
vis-a``-vis children varies according to their age and maturity, and that younger
children may not appreciate the dangers inherent in their surroundings.
Ruiz v. Victory Properties, LLC, supra, 332–33. The primary wild card in
the present case is not, as in Ruiz, a child’s conduct but, rather, the distribu-
tion of infected ticks and the epidemiology of the tick-borne virus. Accord-
ingly, any inferences to be drawn from Ruiz about the unpredictability of
children’s behavior are largely irrelevant. To the extent that the plaintiff’s
own conduct and propensity to follow instructions is relevant to the foresee-
ability question, Goldberger, which involved a child much closer to the
plaintiff’s own age (albeit still several years younger), is more directly on
point. Goldberger v. David Roberts Corp., supra, 139 Conn. 629.
4
It is true that liability for negligence may lie when ‘‘harm of the general
nature as that which occurred is foreseeable . . . even though the manner
in which the accident happens is unusual, bizarre or unforeseeable.’’ Pisel
v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Nevertheless,
if the Mt. Pan trip itinerary only anticipated and only permitted walking on
paved paths and travelling by cable car, activities that would have posed
no risk of insect-borne disease, then harm of the general sort that the plaintiff
suffered was foreseeable to the defendant only if it was likely that students
would engage in a sylvan frolic of their own.
5
The CDC noted that the risk of contracting TBE varies according to the
degree of unprotected exposure in forested areas, and also that most cases
occur during the months of March and November.
6
See B. Howard, ‘‘What Are the Odds a Meteorite Could Kill You?,’’
National Geographic (February 9, 2016), available at http://news.nationalgeo-
graphic.com/2016/02/160209-meteorite-death-india-probability-odds (plac-
ing odds at one in 1.6 million) (last visited July 27, 2017).
7
By way of comparison, the plaintiff’s own travel medicine expert wrote
that a tourist is not considered to be at risk when the risk of contracting
a particular disease is one in one million.
8
It was no more likely that the plaintiff would fall victim to other harm
of the general nature as that which she suffered. The evidence at trial
suggested that contracting other serious insect-borne illnesses such as Japa-
nese encephalitis during the field trip to Mt. Pan was highly improbable.
There was undisputed evidence, for example, that no foreign tourist had
contracted that disease in China during the previous decade, or ever in
Tianjin, most likely because Japanese encephalitis is endemic only in rural
pig and rice farming areas and is transmitted only at night. Indeed, the
plaintiff’s own travel medicine expert wrote that the average tourist is not
at risk of contracting Japanese encephalitis in China.
Moreover, although there were a few brief references at trial to the pres-
ence of Lyme disease in China, the Court of Appeals appears to have accepted
the defendant’s argument that that disease is not a harm of the same general
sort as TBE. I agree. Lyme disease is pervasive in Connecticut, and yet one
need only visit the nearest park, playground, or sports field to see that
wearing long pants and long sleeved shirts on a hot summer day is not the
norm, however prudent such measures might be.
9
Black’s Law Dictionary (6th Ed. 1990), for example, defines foreseeabil-
ity, among other things, as ‘‘[t]hat which is objectively reasonable to expect,
not merely what might conceivably occur.’’ (Emphasis added.)
10
The federal courts also relied on the fact that various CDC advisories
and other travel websites referenced a risk of TBE or Japanese encephalitis
in China or East Asia. See Munn v. Hotchkiss School, supra, 795 F.3d 330;
Munn v. Hotchkiss School, supra, 24 F. Supp. 3d 176–79. As I explain in
part II A of this concurring opinion, however, just as a visitor to Cleveland
need not take precautions against a disease such as the plague, which affects
only a few individuals each year in the mountain west; see CDC, Morbidity
and Mortality Weekly Report: Human Plague—United States, 2015 (Vol. 64,
August 28, 2015), available at https://www.cdc.gov/mmwr/preview/
mmwrhtml/mm6433a6.htm (last visited July 27, 2017); the mere fact that a
disease has occurred somewhere in China or Asia does not, in and of itself,
make it likely that an American tourist will contract the disease during a
visit to Mt. Pan.
11
Mt. Pan is located approximately fifty miles due east of Beijing Capital
International Airport. Accordingly, if the CDC travel warnings for northeast
China encompassed the Mt. Pan area merely because Mt. Pan is located in
the northeastern quadrant of the country, they also would cover the capital
airport region and would apply to many international travelers to China.
12
In addition, there was testimony at trial that, in 2007, the CDC published
a specific article on TBE that did not list China among those countries in
which the disease was endemic.
13
See, e.g., United States v. Chester, 628 F.3d 673, 692 n.4 (4th Cir. 2010);
Gent v. CUNA Mutual Ins. Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010);
Seddens v. McGinnis, Docket No. 91-1500, 1992 WL 174541, *2 (7th Cir.
1992) (decision without published opinion, 972 F.2d 352 [7th Cir. 1992]);
Brown v. Federal Express Corp., 62 F. Supp. 3d 681, 683, 686–87 (W.D.
Tenn. 2014), aff’d, 610 Fed. Appx. 498 (6th Cir. 2015).
14
See, e.g., Perera v. Attorney General, 536 Fed. Appx. 240, 242 n.3 (3d
Cir. 2013); Distributorsoutlet.com, LLC v. Glasstree, Inc., Docket No. 11-
CV-6079 (PKC) (SLT), 2016 WL 3248310, *2 (E.D.N.Y. June 10, 2016); Erickson
v. Nebraska Machinery Co., Docket No. 15-CV-01147-JD, 2015 WL 4089849,
*1 n.1 (N.D. Cal. July 6, 2015); Pond Guy, Inc. v. Aquascape Designs, Inc.,
Docket No. 13-13229, 2014 WL 2863871, *4 (E.D. Mich. June 24, 2014).
15
The District Court did not cite to any Connecticut authority suggesting
that we have.
16
Of course, those considerations may be relevant to the distinct question
of whether a breach of duty has occurred.
17
See RT News, ‘‘Tourist Mauled to Death in Brutal Hour-Long Tiger
Attack in Chinese Zoo’’ (January 29, 2017), available at https://www.rt.com/
viral/375513-tiger-killing-china-zoo (last visited July 27, 2017).
18
See T. Phillips, ‘‘Chinese Passengers Start Riot in Airport over Delayed
Flights,’’ The Telegraph (February 7, 2014), available at http://www.tele-
graph.co.uk/news/worldnews/asia/china/10623528/Chinese-passengers-
start-riot-in-airport-over-delayed-flights.html (last visited July 27, 2017).
19
See A. Krishnan, ‘‘Tiananmen Attack a ‘Jihadi Operation’: Islamist
Group,’’ TheHindu.com (May 28, 2016), available at http://www.thehindu.-
com/news/international/world/tiananmen-attack-a-jihadi-operation-islam-
ist-group/article5386937.ece (last visited July 27, 2017).
20
See Z. Tingting, ‘‘University Graduate Robs Foreigners in Beijing Bars,’’
China.org.cn (November 4, 2013), available at http://china.org.cn/china/2013-
11/04/content 30492897.htm (last visited July 27, 2017).
21
See R. Pocklington, ‘‘Shocking Video and Pictures Show Tourists Plunge
into Water as New Bridge Collapses,’’ Mirror (October 14, 2013), available
at http://www.mirror.co.uk/news/world-news/chinese-bridge-collapse-
video-pictures-2369243 (last visited July 27, 2017).
22
See C. Bodeen, ‘‘China: 1 Tourist Killed, 18 Hurt by Falling Rocks,’’ San
Diego Union-Tribune (July 21, 2013), available at http://www.sandiegounion-
tribune.com/sdut-china-1-tourist-killed-18-hurt-by-falling-rocks-2013jul21-sto-
ry.html (last visited July 27, 2017); L. Qian, ‘‘Tourist Falls to Death after
Posing at Cliff,’’ ShanghaiDaily.com (August 28, 2013), available at http://
www.shanghaidaily.com/nation/Tourist-falls-to-death-after-posing-at-cliff/
shdaily.shtml (last visited July 27, 2017).
23
See C. Custer, ‘‘Tourist in China Detained for 5 Days after Using Mobile
Phone on Airplane,’’ TechInAsia (October 17, 2012), available at https://
www.techinasia.com/tourist-china-detained-5-days-mobile-phone-airplane
(last visited July 27, 2017).
24
See A. Laing & J. Ensor, ‘‘Elderly British Tourists Detained in China
Were Arrested for ‘Watching BBC Documentary,’ ’’ The Telegraph (July 18,
2015), available at http://www.telegraph.co.uk/news/worldnews/asia/china/
11746637/China-to-deport-foreign-tourists-after-terror-video-case.html (last
visited July 27, 2017).
25
See L. Abrams, ‘‘New Bird Flu Claims Its First Victim,’’ Salon.com
(December 18, 2013), available at http://www.salon.com/2013/12/18/
new_bird_flu_claims_its_first_victim (last visited July 27, 2017).
26
See J. Kaiman, ‘‘In China, a Single Plague Death Means an Entire City
Quarantined,’’ TheGuardian.com (July 25, 2014), available at https://
www.theguardian.com/cities/2014/jul/25/plague-death-china-quarantine-
yumen-city (last visited July 27, 2017).
27
See E. Crouch, ‘‘Beijing Street Meat Poisons Tourist, Definitely Wasn’t
Lamb,’’ Shanghaiist (July 23, 2013), available at http://shanghaiist.com/2013/
07/23/beijing_street_meat_poisons_tourist.php (last visited July 27, 2017).
28
See A. Hodgekiss, ‘‘Sushi Lover’s Entire Body Left Riddled with WORMS
after Eating Contaminated Sashimi,’’ DailyMail.com (September 24, 2014),
available at http://www.dailymail.co.uk/health/article-2768117/Sushi-lover-s-
entire-body-left-riddled-tapeworm-parasites-eating-contaminated-sashim-
i.html (last visited July 27, 2017).
29
See C. Kitching, ‘‘Chinese Woman Dies after Being Accidentally Knocked
over by Canadian Tourist at Great Wall of China,’’ DailyMail.com (April
12, 2015), available at http://www.dailymail.co.uk/travel/travel_news/article-
3035644/Chinese-woman-dies-accidentally-knocked-Canadian-tourist-Great-
Wall-China.htm (last visited July 27, 2017).
30
See ‘‘Monks Beat Tourist with Stones and Hammers,’’ CRI (August 7,
2013), available at http://www.china.org.cn/china/2013-08/07/
content_29644989.htm (last visited July 27, 2017).
31
See ‘‘China Highway Tourist Bus Fire Kills Six in Tianjin,’’ BBC (October
1, 2012), available at http://www.bbc.com/news/world-asia-china-19782466
(last visited July 27, 2017); see also S. Yingying, ‘‘Extreme Heat Causing
Vehicle Fires,’’ ChinaDaily USA (July 17, 2013), available at http://usa.china-
daily.com.cn/epaper/2013-07/17/content_16787740.htm (discussing sponta-
neous combustion of sightseeing bus) (last visited July 27, 2017).
32
See ‘‘Yunnan Bus Crash Kills 8,’’ Global Times (July 15, 2013), available at
http://www.globaltimes.cn/content/796078.shtml (last visited July 27, 2017).
33
See ‘‘Tourist Bus Falls from Cliff in China, 3 Killed,’’ Zee News (April
29, 2013), available at http://zeenews.india.com/news/world/tourist-bus-falls-
from-cliff-in-china-3-killed_845542.html (last visited July 27, 2017).
34
See ‘‘Seven Tourists Injured, 300 Evacuated in Yunnan, China Earth-
quake,’’ HTH Worldwide (September 3, 2013), available at https://
www.hthstudents.com/extras/haiti_article_template.cfm?p_fn=
ne_news_108576.html (last visited July 27, 2017).
35
On June 23, 2007, the high temperature was 90 degrees in Beijing and
89 degrees in Tianjin. See https://www.wunderground.com/history/airport/
ZBAA/2007/6/23/DailyHistory.html?req_city=&req_state=&
req_statename=&reqdb.zip=&reqdb.magic=&reqdb.wmo= (last visited July
27, 2017); https://www.wunderground.com/history/airport/ZBTJ/2007/6/23/
DailyHistory.html?req_city=Tianjin&req_state=&req_statename=China&
reqdb.zip=&reqdb.magic=&reqdb.wmo= (last visited July 27, 2017); see also
Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (appellate court may
take judicial notice of historical temperature data); Hadley v. Peters, Docket
No. 94-1267, 1995 WL 675990, *8 (7th Cir. 1995) (decision without published
opinion, 70 F.3d 117 [7th Cir. 1995]) (same).
36
See United States Environmental Protection Agency, ‘‘Safety Review of
DEET,’’ available at https://www.epa.gov/insect-repellents/deet (last visited
July 27, 2017); see also ‘‘Reregistration Eligibility Decision (RED): DEET,’’
EPA738-R-98-010 (September 1998), p. 6; Environmental Protection Agency,
‘‘DEET (N,N-Diethyl-meta-toluamide) Interim Registration Review Decision
Case Number 0002,’’ EPA-HQ-OPP-2012-0162 (September 2014), p. 9.
37
See C. Pleasance, ‘‘China Goes to War with the Killer Giant Hornets
That Have Claimed 42 Lives Already,’’ DailyMail.com (October 8, 2013),
available at http://www.dailymail.co.uk/news/article-2449483/China-goes-
war-killer-giant-hornets-killed-42.html (last visited July 27, 2017).
38
See Cal. Educ. Code § 35330 (d) (Deering 1995); see also Sanchez v.
San Diego County Office of Education, 182 Cal. App. 4th 1580, 1584, 106
Cal. Rptr. 3d 750 (2010).
39
For example, the legislature may wish to codify a version of the rule
that the District Court adopted in Mercier v. Greenwich Academy, Inc.,
Docket No. 3:13-CV-4 (JCH), 2013 WL 3874511, *5 (D. Conn. July 25, 2013),
which held that a coach and school are liable only for reckless or intentional
conduct resulting in player injury during a high school athletic contest. This
may be an appropriate standard for situations in which imposition of a
negligence standard risks sterilizing the activity and stripping it of its primary
value or purpose.