Benjamin Zipursky co-authored an op-ed in the Hartford Courant regarding a personal injury lawsuit against The Hotchkiss School by student Cara Munn, who was permanently disabled after a summer trip in China organized by the school.
Monday, the Connecticut Supreme Court will hear oral argument in Munn v. Hotchkiss, a tragic personal injury case. The court will be sorely tempted to make bad law in Munn. It must resist that temptation.
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Cara Munn, 15, was bitten by a tick while hiking on a mountain in China during a summer trip organized by The Hotchkiss School, her private school. The tick transmitted encephalitis, which has left her permanently unable to speak. Cara and her parents sued Hotchkiss in a federal court, arguing that the school was negligent for failing to warn them that the trip might bring her into contact with disease-bearing insects and for failing to take steps to ensure that she used insect repellant, wore proper clothes while walking in forested areas and checked herself for ticks. A jury awarded her $10 million in economic damages and $31.5 million in noneconomic damages.
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Hotchkiss appealed to the U.S. Court of Appeals for the Second Circuit. Unsure about how to apply Connecticut tort law (as it is required to do), the Court of Appeals invited the Connecticut Supreme Court to provide it with guidance on two questions: (1) whether a private school owes a duty of care to students when they participate in school trips, and (2) whether the jury’s damages award was excessive.
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Tort cases that seem to present simple legal issues often in reality are hiding complex ones. Not so with Munn, at least with respect to the first question. Hotchkiss is urging the court to rule that schools do not owe their students on field trips a duty to be careful to protect them from dangers. This is as preposterous in tort law as it is in common sense. The very able lawyers for Hotchkiss seem to have convinced the Second Circuit that the existence of this legal duty is an open question, but it is not. Under the law of Connecticut and probably every other American jurisdiction, schools owe a common law duty of care to 15-year-old students under their custody.
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A much more difficult question is whether Hotchkiss fulfilled its duty: Was Hotckiss really careless in failing to provide Cara with sufficient warning of and protection from insect-borne illnesses? A jury concluded that the school was careless, but was the jury right? The correctness of that conclusion, however, is not before the state’s high court. Indeed, this is why Hotchkiss’ lawyers are going for broke by arguing that the school had no duty at all to be careful.
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It is also argued on behalf of Hotchkiss that the $41.5 million verdict is excessive, and that damage awards like this could overwhelm even wealthy schools, let alone those that are strapped. The award is so large, the school’s lawyers claim, as to demonstrate that the jury was inflamed by anger or prejudice and hence vastly exceeded any plausible notion of fair compensation.
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On the damages issue, Hotchkiss has a far stronger argument. While Connecticut courts have upheld large verdicts in the past, and while the computation of damages is normally for the jury, this award is so large that the state Supreme Court would be entitled to instruct the Second Circuit that Connecticut law does not require deference to the jury in this case. Indeed, it would be within its rights to recommend that the damages be substantially reduced or even that a new trial be ordered.
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Although we have suggested that Munn’s duty question is easy, we understand why the Second Circuit may have thought the case was sufficiently challenging to pass onto the Connecticut Supreme Court. A young woman losing her capacity for speech because of her school’s carelessness is horrific and tragic. Even if a $41.5 million award is too high, it is hard to say why it is too high (or what an appropriate award would be) and it is hard to say whether an order requiring the parties to start all over with a new trial after years of litigation would be fair.
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These are the difficult judgments in Munn, and the court will be tempted to finesse them altogether by embracing the defendant’s legally unsupportable “no duty” argument. The court must stand firm on the duty question and do its best to provide the Second Circuit with a legally tenable framework for reducing damages.