By Daniel Zim, Travel Law Columnist
Last year, a Connecticut jury sent shock waves within the legal community when it awarded $41,750,000 in damages to Cara Munn, a woman who became permanently disabled after being bitten by a tick during a tour of China organized by her school. It was the second largest verdict in Connecticut history and one of the largest involving a tour organizer which in this case is an elite boarding school, the Hotchkiss School in Lakeville, Connecticut.
The verdict has surprised a lot of people, many of whom have these little critters in their back yards and occasionally have to remove them from their pets. After all, how could a school be made responsible for a tick bite? Isn’t that a naturally occurring injury similar to being struck by lightning? Isn’t this case just about being unlucky or being in the wrong place at the wrong time? A panel of jurors did not think so and by delving deeper into the details of the case it explains the jury’s rationale as the jury focused on questions surrounding the standard of care owed to Cara and the School’s duty to warn her and her parents of hazardous conditions as well as their duty to supervise her.
Fateful China Tour
Here are the facts. In 2007 at the age of 15, Cara signed up for the Hotchkiss School’s six-week summer enrichment program in China. Cara and parents signed a comprehensive waiver and release prior to trip. The Centers for Disease Control (CDC) issued a health alert warning travelers that parts of China carried a risk of tick-borne encephalitis (TBE). Hotchkiss did not tell parents or students about the risk or emphasize the need for precautions. During the trip, the students hiked in Mount Panshan (commonly known as Mount Pan). Chaperones allowed Cara and others to wear shorts and short sleeves and wander off the delineated trails. Cara and several students were bitten by insects. Cara was flown to the U.S. by her parents and eventually the CDC determined that Cara was infected with TBE from a tick bite during one of the hikes. She permanently lost her ability to speak, to eat with her mouth closed, and to control drooling. The Munn’s sued for negligent planning and supervision of China trip. Specifically, the suit claimed the School did not adequately warn students of the risk of insect-borne disease and failed to ensure that the students take adequate precautions against such diseases before and during the trip.
At trial, defense lawyers argued that conditions at Mount Pan, a five-star resort that receives 600,000 visitors annually, was not a nesting ground infested with infected ticks. Despite being surrounded by dense forest, Mount Pan has a distinctly human footprint boasting 72 temples, 13 pagodas and numerous Xanadus and towers built on the mountainside during the Ming and the Qing Dynasties. Visitors walk along well groomed stone pathways or they can take gondola ride to the hotel and concessions stand at summit. The parking lot has an oversized LCD television displaying with visitor information. These factors, the School argued, made Cara’s injury unforeseeable.
During the trial, Cara’s parents filed a motion to exclude the waiver and release agreement which was granted by U.S. District Judge Stefan Underhill who based the exclusion on the ambiguity and lack of clarity of the waiver language. Judge Underhill further ruled that the agreement was unenforceable as it was found to be void as a matter of public policy.
Clear and Unambiguous Waiver and Release Language
In striking the waiver agreement, the court set a very high standard for upholding waiver and release agreements noting that broad waivers of negligent liability are generally disfavored by courts. Citing Connecticut precedent, Judge Underhill further noted that a business seeking to enforce a waiver agreement could not insulate itself from its own negligent acts unless the waiver and release expressly provided so using unmistakable language.
In this case, the School did not use unmistakable waiver language in which it tried to shield itself from its own negligent acts. According to the court, the broadly written waiver never referred to a standard of care, by using a word like “negligence” with respect to the School’s own prospective conduct. As a result, the Court determined that an ordinary person would not necessarily interpret the release to convey that the School intended to eschew its duty to act with reasonable care. The Court found that this ambiguity was underscored by the fact that the waiver referred to the standard of care of others, namely the student’s negligence or the negligent acts of any other participant in the Program, but did not refer specifically to the School.
Void as a Matter of Public Policy
Judge Underhill’s other reason for denying the introduction of the waiver and release agreement at trial was more compelling. It relates to the type of tour and specifically the fact that the School was charged with supervising minors. Even if the document contained an unambiguous release of negligence liability, it would still be void as a matter of public policy, Judge Underhill wrote.
The agreement violated public policy because neither Cara nor her parents had any bargaining power or any meaningful choice but to sign the waiver if they wanted Cara to participate on the trip. The tour participant’s consent to the waiver was a “take it or leave it” proposition in which Cara and her parents had no negotiating power over its terms. Moreover, the School created the trip’s itinerary and planned all of the details for the excursion. The School, thereby maintained complete control over Cara’s exposure to the risks and the knowledge that should go along with avoiding such risks. The School also had control over Cara’s access to medical professionals and travel medicine information due to its nature as a boarding school.
As a minor under the supervision of the Hotchkiss School, Cara could not freely venture out without the permission of a School chaperone. She had no independent means of predicting the topography and nature of the trip and while in China was not at liberty to independently go to a store to purchase insect repellant. Therefore, the waiver agreement was found to be unenforceable. Once the waiver was excluded from evidence, the trial court turned its attention to the issues of (1) whether the School acted negligently by failing to investigate and warn Cara and her parents of potential dangers they might face during the China excursion, and (2) whether the failed to supervise her. The contractually based defense was lost.
The Centers for Disease Control (CDC) and National Health Service of Great Britain identified northeastern areas of China as being risk areas for encephalitis, Lyme disease and other insect-transmitted diseases. But the School failed to warn and ensure that students protected themselves against tick bites by telling them to cover up and use repellent. The School committed error in composing its planning literature for the excursion in which Hotchkiss provided the CDC web link for South American locales instead of the China CDC link. The School also erred in describing the trip as a three-city urban tour of Beijing, Shanghai and Tianjin without mentioning that participants would travel to the heavily-forested Mount Pan region, about 100 kilometers north of Tianjin.
After reviewing the evidence the jury determined that the Hotchkiss School was 100 percent negligent and awarded Cara $41,750,000 in damages.
Tour operators face similar risks: This case involves a school-organized excursion but if the school is hypothetically removed from the equation and replaced with a tour operator that specializes in educational youth tours, the result would likely be exactly the same.
The doctrine of in loco parentis refers to the legal responsibility of a person or organization to perform some of the functions or responsibilities of a parent. The doctrine necessitates that such persons or organizations have a duty of supervision and they must take affirmative action to protect minors under their care and custody from harm. Courts have applied the heightened standard of responsibility under the in loco parentis doctrine to a broad range of organizations that care for minors including schools, juvenile detention centers, camps and social and religious groups. Educational youth tour operators also assume a heightened duty of care when minors, unaccompanied by parents, are in their custody. Just like the Hotchkiss School, those who run educational youth tours can be held responsible when they fail to protect minors over whom they maintain oversight.
Excessively broad waiver and release agreements: As previously mentioned, Judge Underhill noted that courts generally disfavor broad waivers negligence liability where a party disclaims liability for his or her own negligent acts. If such waivers are used, the party seeking to enforce the provision must use clear and unmistakable language to express its intent to insulate itself from its own negligent acts. Here, the School failed to clearly disclaim its own negligence in the waiver and release.
Furthermore, courts in a growing number of jurisdictions have held that releases are valid only to protect defendants from being sued for ordinary negligence. They are commonly held invalid if the waiver and release disclaims liability for gross negligence or willful and wanton conduct. Therefore, in order to stand a better chance of having your waiver upheld in court, it is generally a better practice to disclaim liability for your own ordinary negligence but not try to disclaim for grossly negligent or reckless acts that you cause.
Proofreading and editing: It appears that the School actually made an attempt to warn students of health hazards in China but they did so negligently. They provided the CDC web address for South America in the planning literature instead of the web link for China. It is a common practice for tour operators to provide their clients with U.S. Department of State Country Advisories and CDC health information sites in brochures and waiver agreements but it is hugely important, as this case shows, to provide them with the correct information. Providing the wrong country information can expose tour operators to claims of failure to warn. Typos and content errors can arise especially when tour organizers copy and paste from old brochures or forms. Therefore, it is better to provide the general State Department and CDC web addresses to allow participants to inform themselves on country and health conditions. Clients can navigate those sites to find information on the specific countries they plan to travel to.
Disclose, disclose, disclose: As his been previously mentioned, the School billed the trip as an urban tour of Beijing, Shanghai and Tianjin failing to mention to students that they would travel to dense forests around Mount Pan. We can learn from this episode that it is critical to provide tour participants with a fully descriptive itinerary. In brochures and planning literature, provide complete description of conditions to be expected. For example, you should specify all forms of transportation that are used on the tour such as boats, float planes, bicycles, etc. Also describe the tour terrain conditions eg. urban areas, deserts, swamps, mountains, forests, the activity level and physical health required, exposure to nature, possible encounters with wildlife and other risks. In preparing the content for these written materials, really try to investigate, plan and brainstorm all possibilities and scenarios.
Unless placed in a vacuum sealed bubble, minors will continue to encounter health and other hazards on student tours. In the wake of this landmark verdict, we can only expect to see more suits like the Hotchkiss case. In fact, Cara’s lawyer, Antonio Ponvert of the law firm Koskoff, Koskoff & Bieder, PC, has filed a new suit on behalf of another minor which is based on a strikingly similar set of facts. The suit, Sierzputowski v. YMCA Camp Mohawk, Inc., is currently being litigated and it claims that an overnight camp failed to monitor and protect a camper from contracting Lyme Disease after being bitten by a tick. Seemingly emboldened by the Hotchkiss verdict, the plaintiffs in the YMCA Camp Mohawk case are also seeking $41,750,000 in damages.
However, tour operators and travel industry specialist can take steps to better protect themselves against such liability by crafting waiver agreements that contain clear and unambiguous language which are not overly broad in scope so as to shield the organization from all forms of negligence including its own grossly negligent and reckless actions. Finally, these organizations should devote great care and attention to disclose all possible conditions that tour participants would encounter during their trips.
Daniel Zim is a Vienna, VA-based attorney specializing in travel law. Visit his website at www.zimtravellaw.com
DISCLAIMER: The information contained in this column is intended to provide general information only and not legal advice. You should consult your attorney before relying upon any of the information presented here.