14‐2410‐cv
Munn v. Hotchkiss Sch.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2014
ARGUED: MAY 4, 2015
DECIDED: AUGUST 3, 2015
No. 14‐2410‐cv
ORSON D. MUNN, III, AS PARENT & NEXT FRIEND OF C.M. & IND., CHRISTINE
MUNN, AS PARENT & NEXT FRIEND OF C.M. & IND., CARA L. MUNN,
Plaintiffs‐Appellees,
v.
THE HOTCHKISS SCHOOL,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the District of Connecticut.
No. 09‐cv‐919 – Stefan R. Underhill, Judge.
________
Before: WALKER, LYNCH, and LOHIER, Circuit Judges.
________
Cara Munn and her parents brought suit against the Hotchkiss
School after Munn contracted tick‐borne encephalitis on a school‐
organized trip to China. At trial, a jury found Hotchkiss negligent and
No. 14‐2410‐cv
awarded the Munns $41.5 million in damages, $31.5 of which were non‐
economic damages. On appeal, the school argues that it did not have a
legal duty to warn about or protect against tick‐borne encephalitis and that
the jury award is excessive. Although we agree with the plaintiffs that
there was sufficient evidence for a jury to find Munn’s illness foreseeable,
we are unable to determine whether public policy supports imposing a
legal duty on Hotchkiss. This case implicates important and unresolved
issues of Connecticut state law and public policy. It is likely to have
repercussions on future negligence cases in Connecticut, and existing case
law provides insufficient guidance on some of the issues raised.
Accordingly, we certify two questions to the Connecticut Supreme Court:
(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 an award of approximately
$41.5 million in favor of the plaintiffs, $31.5 million of which are non‐
economic damages, warrant remittitur?
________
WESLEY W. HORTON, Horton, Shields & Knox, P.C.,
Hartford, CT (Karen L. Dowd, Kenneth J. Bartschi,
Horton, Shields & Knox, P.C., Hartford, CT, Aaron S.
Bayer, Jeffrey R. Babbin, Wiggin and Dana LLP, New
Haven, CT, on the brief), for Defendant‐Appellant.
ANTONIO PONVERT III, Koskoff Koskoff & Bieder,
Bridgeport, CT (Alinor C. Sterling, Koskoff Koskoff &
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No. 14‐2410‐cv
Bieder, Bridgeport, CT, on the brief), for Plaintiffs‐
Appellees.
________
JOHN M. WALKER, JR., Circuit Judge:
Cara Munn and her parents brought suit against the Hotchkiss
School after Munn contracted tick‐borne encephalitis on a school‐
organized trip to China. At trial, a jury found Hotchkiss negligent and
awarded the Munns $41.5 million in damages, $31.5 of which were non‐
economic damages. On appeal, the school argues that it did not have a
legal duty to warn about or protect against tick‐borne encephalitis and that
the jury award is excessive. Although we agree with the plaintiffs that
there was sufficient evidence for a jury to find Munn’s illness foreseeable,
we are unable to determine whether public policy supports imposing a
legal duty on Hotchkiss. This case implicates important and unresolved
issues of Connecticut state law and public policy. It is likely to have
repercussions on future negligence cases in Connecticut, and existing case
law provides insufficient guidance on some of the issues raised.
Accordingly, we certify two questions to the Connecticut Supreme Court:
(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 an award of approximately
$41.5 million in favor of the plaintiffs, $31.5 million of which are non‐
economic damages, warrant remittitur?
3
No. 14‐2410‐cv
BACKGROUND
We recite the facts in the light most favorable to the plaintiffs in light
of the jury verdict in their favor. See Jacques v. DiMarzio, Inc., 386 F.3d 192,
195 (2d Cir. 2004).
A. The Trip to China
During her freshman year, Cara Munn (“Munn”), then a fifteen‐
year‐old student at the Hotchkiss School (“Hotchkiss”), a private boarding
school, decided to participate in a summer program in Tianjin, China,
organized by Hotchkiss. The month‐long program immersed students in
Chinese language classes and included weekend trips to cultural
landmarks.
Jean Yu, the school’s Chinese Language and Culture Program
Director, served as the trip leader. In preparation for the trip, in March
2007, she sent parents a packet outlining activities and a set of legal forms
for the participants and parents to waive legal claims against the school.
The packet mentioned a visit to Mount Panshan, referred to by the parties
as “Mt. Pan.” The school also sent medical advice for the trip, including a
link to a Centers for Disease Control and Prevention (“CDC”) webpage
and a note that the school’s infirmary could “serve as a travel clinic.”
Special App’x 16. The webpage linked to the CDC’s Central America site
instead of its China site, however, and the infirmary was unable to provide
independent medical advice. Finally, the school sent an itinerary, packing
list, and a handbook on international travel. The packing list mentioned
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No. 14‐2410‐cv
bug spray in its “miscellaneous” category, but included no warning about
insect‐borne diseases in the section where other health risks were
mentioned.
On June 23, 2007, while on the trip, the students went for a weekend
excursion to the Great Wall and to Mt. Pan. Mt. Pan is a forested mountain.
Again, no warnings to wear bug spray were given. Trip leader Yu left her
bug spray on the bus. After hiking to the top of the mountain, a group of
three or four students, including Munn, decided to hike down, while the
others took a cable car. Yu pointed them to the path and said that she
would wait for them at the bottom. Munn testified that the students
decided to leave the paved path and follow narrow dirt trails instead. The
students got lost and walked among trees and through brush.
Munn testified at trial that after the trip to Mt. Pan she had many
insect bites and an itchy welt on her left arm. Ten days later, she awoke
with a headache, a fever, and wooziness. Her condition deteriorated
rapidly and she was taken to a local hospital. Munn was then transferred
to a Beijing hospital and her parents came from the United States. Severely
ill and partially paralyzed, Munn was soon airlifted back to New York.
Munn was diagnosed with tick‐borne encephalitis (“TBE”), a viral
infectious disease which affects the central nervous system.
Because of her illness, Munn lost the ability to speak. At trial, she
testified through a machine into which she typed her answers. She has
difficulty controlling her facial muscles, causing her to drool. Her mother
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No. 14‐2410‐cv
testified about Munn’s frustration with her inability to speak and stated
that Munn experiences “a lot of rejection.” Joint App’x 1191‐92. Munn has
also lost some cognitive function, particularly in terms of reading
comprehension and math. Still, Munn has managed to live a functional
life. She finished high school and attended Trinity College. She can play
sports, still travels, and has held summer internships.
B. Procedural History
On June 11, 2009, Munn and her parents filed this diversity action
against Hotchkiss alleging that the school’s negligent planning and
careless supervision of the trip caused her illness.
In their lawsuit, the Munns alleged that Hotchkiss was negligent in
1) failing to warn the Munns about the risks of viral encephalitis; 2) failing
to provide for proper protective clothing, insect repellent, or vaccinations;
3) failing to provide medical personnel on the trip; 4) failing to establish
procedures for addressing medical emergencies; and 5) failing to advise
the Munns on the availability of vaccines against viral encephalitis for
children traveling to rural areas of China. At trial, the Munns proceeded
only on the first and second theories of liability—failure to warn and
failure to protect.
Hotchkiss asserted a number of affirmative defenses, including that
the Munns assumed the risk by signing the school’s “Agreement, Waiver,
and Release of Liability.” However, the district court (Stefan R. Underhill,
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No. 14‐2410‐cv
J.) excluded the waiver, finding both that its language was ambiguous and
that it was against public policy under Connecticut law.
At trial, the plaintiffs offered two experts, Stuart Rose, an expert on
travel medicine, and Peter Tarlow, an expert on tourism‐risk management
who testified about standards of care. Hotchkiss also offered two experts,
David Freedman, a travel‐medicine expert, and William Fluharty,
proffered as an expert on standards of care followed by similarly‐situated
schools. The district court, however, excluded Fluharty’s testimony after it
was given, finding that he had fabricated and misrepresented support for
his testimony.
At the conclusion of the plaintiffs’ case, Hotchkiss sought a directed
verdict under Rule 50(a) of the Federal Rules of Civil Procedure, arguing
that Munn contributed to her own injuries and that the risk of contracting
TBE was unforeseeable. The district court denied that motion.
On March 27, 2013, after a seven‐day trial, the jury found Hotchkiss
solely liable. Specifically, the jury found that Hotchkiss was negligent in
failing to warn Munn of the risk of serious insect‐borne illnesses and in
failing to ensure that she took protective measures. The jury also found no
contributory negligence on the part of Munn. It awarded $10.25 million in
past and future economic damages, and $31.5 million in non‐economic
damages. Hotchkiss renewed its Rule 50 motion and filed a motion for a
new trial under Rule 59.
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No. 14‐2410‐cv
On June 5, 2014, the district court denied both of these motions.
Pursuant to the parties’ stipulation, it reduced the monetary award by the
amount that the Munns had collected from collateral sources. The total
award against Hotchkiss is now approximately $41.5 million.
DISCUSSION
Hotchkiss argues on appeal that it did not have a legal duty to warn
about or protect against tick‐borne encephalitis and that the $41.5 million
jury award is excessive. The school asserts that the jury verdict is not
supported by sufficient evidence and that it contravenes Connecticut
public policy to impose a duty to warn about or protect against a disease
as remote as tick‐borne encephalitis.1
Because this case implicates complex and unresolved issues of state
law and public policy, we certify two questions of law to the Connecticut
Supreme Court: (1) Does Connecticut public policy support the imposition
of 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 an
award of approximately $41.5 million in favor of the plaintiffs, $31.5
million of which are non‐economic damages, warrant remittitur?
1 Hotchkiss raises several other arguments in its appeal that we do not reach
here because the questions we certify could be outcome determinative. The
school asserts that the jury charge was misleading, that the district court abused
its discretion in excluding Fluharty’s testimony while at the same time admitting
the testimony of the plaintiffs’ experts, that there was insufficient evidence that
Munn was bitten on Mt. Pan, and that the district court erred in excluding the
release of claims.
8
No. 14‐2410‐cv
I. Foreseeability
Hotchkiss first argues that there was insufficient evidence to support
the jury verdict that it was foreseeable Munn would contract a serious
insect‐borne illness on the trip to China. We disagree. Upon review of the
record, we find that the plaintiffs presented sufficient evidence at trial that
Hotchkiss should have known of the risk of serious insect‐borne diseases.
We will overturn a jury verdict only if there is such a “complete
absence of evidence supporting the verdict that the jury’s findings could
only have been the result of sheer surmise and conjecture, or such an
overwhelming amount of evidence in favor of the appellant that
reasonable and fair minded men could not arrive at a verdict against the
appellant.” Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005) (internal
quotation marks and alterations omitted). In addition, “assessments of the
weight of the evidence or the credibility of witnesses are for the jury and
not grounds for reversal on appeal; we defer to the jury’s assessments of
both of these issues.” Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
Under Connecticut negligence law, a legal duty requires that (1) “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 by the
court “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.” Sic v. Nunan, 307 Conn.
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No. 14‐2410‐cv
399, 407‐08 (2012) (internal quotation marks omitted). Recently, the
Connecticut Supreme Court reiterated that “as long as harm of the general
nature as that which occurred is foreseeable there is a basis for liability
even though the manner in which the accident happens is unusual, bizarre
or unforeseeable.” Ruiz v. Victory Props., LLC, 315 Conn. 320, 335 (2015)
(internal quotation marks and alteration omitted).
Connecticut decisions construe foreseeability broadly. For example,
in Ruiz, where a ten‐year‐old child dropped a piece of concrete from the
third floor resulting in the injury of a seven‐year‐old child below, the
Connecticut Supreme Court held that it could be foreseeable that backyard
debris in an apartment building would lead to injury when children used
the area as a playground. In reaching this conclusion, the court
emphasized that its “cases have attempted to safeguard children of tender
years from their propensity to disregard dangerous conditions.” Id. at 333
(internal quotation marks omitted). Although Cara Munn was several
years older than the children in Ruiz, the decision can be read to indicate
that Connecticut courts construe foreseeability broadly, especially as it
relates to children.
Here, the evidence presented at trial was sufficient to support the
jury’s verdict that Munn’s illness was foreseeable. Hotchkiss introduced a
CDC China advisory last modified on August 1, 2007 that included a
warning that “[t]ickborne encephalitis occurs in forested regions in
northeastern China and in South Korea.” Joint App’x 1892. The evidence
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No. 14‐2410‐cv
also showed that Mt. Pan is a forested mountain in the northeastern
Chinese province of Tianjin. In addition, Hotchkiss’s expert, David
Freedman, testified that the August 1, 2007 advisory would put a school on
notice that there was a risk of TBE in northeastern China. Although the
August 1, 2007 advisory was dated more than one month after Munn’s
visit to Mt. Pan, the school’s Director of International Programs, David
Thompson, testified that he had seen a warning about TBE on the CDC’s
China page before the trip. On direct examination, he answered yes when
asked if he “recall[ed] seeing information . . . about a risk of tick‐borne
encephalitis in Northeast China at the time of this trip,” Joint App’x 1037,
and acknowledged that he “looked at” the August 1, 2007 advisory in
preparation for the trip, Joint App’x 1040. In addition, other travel
advisories, including a CDC advisory dated in April 2007—before the
trip—mentioned serious insect‐borne diseases, including Japanese
encephalitis, and notices on travel websites and other government
websites warned of tick‐borne encephalitis in East Asia, and specifically in
China.
Hotchkiss argues on appeal that the jury could not have found the
disease foreseeable based on the August 1, 2007 travel advisory because
the advisory was released after the trip. Hotchkiss, which introduced the
advisory as a defense trial exhibit and from which its own witness testified
as to trip preparation awareness, now attempts to discredit its own exhibit.
The school instead asks us to consider an earlier advisory dated May 23,
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No. 14‐2410‐cv
2007, which does not mention TBE. That advisory, however, was not
introduced at trial and is not part of the record. We will not consider new
evidence “absent extraordinary circumstances” and no such circumstances
are present here. Intʹl Bus. Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d
Cir. 1975) (per curiam). Furthermore, 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 testimony 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.
II. Public Policy
A. Duty
Hotchkiss also argues on appeal that imposing a legal duty to warn
or protect in this case contravenes Connecticut public policy. This
argument presents a closer question. However, Connecticut precedent
does not offer sufficient guidance on whether public policy supports
imposing a duty on Hotchkiss, and the parties present compelling
arguments on both sides. In these circumstances, rather than attempting to
discern Connecticut public policy ourselves, we think it preferable to
certify the question to the Connecticut Supreme Court.
As an initial matter, we disagree with the plaintiffs that Hotchkiss
has waived this argument by not raising it in its Rule 50 motion. Hotchkiss
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No. 14‐2410‐cv
has not waived its public policy argument because it raised the argument
in its motion for summary judgment and it is a question of law solely for
the court. We have previously stated that “where the trial court’s denial of
a summary judgment motion is not based on the sufficiency of the
evidence, but on a question of law, the rationale behind Rule 50 does not
apply, and the need for such an objection [through a Rule 50 motion] is
absent.” Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004). Thus we find
that this argument was not waived.
1. The Applicable Law
Under Connecticut law, foreseeability of harm alone is not
determinative of duties in tort and the imposition of a duty of care also
implicates questions of public policy. The Connecticut Supreme Court has
stated:
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 which lead the law to say
that the plaintiff is entitled to protection. . . . The final step in
the duty inquiry, then, is to make a determination of the
fundamental policy of the law, as to whether the defendantʹs
responsibility should extend to such results.
Murillo v. Seymour Ambulance Assʹn, Inc., 264 Conn. 474, 479‐80 (2003)
(internal quotation marks and alterations omitted).
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No. 14‐2410‐cv
No Connecticut case closely resembles this one, but in at least two
cases, the Connecticut Supreme Court has overturned jury verdicts by
finding that public policy did not support the imposition of a duty on the
tortfeasor. In Jaworski v. Kiernan, 241 Conn. 399, 409 (1997), the Connecticut
Supreme Court overturned a jury verdict finding a recreational soccer
player responsible for another player’s injury based on a theory of
negligence. The court reasoned that public policy favors encouraging
competitive sports. In reaching this conclusion, it noted that other
jurisdictions have required deliberate or reckless conduct, not just
negligence. Id. And in Lodge v. Arett Sales Corp., 246 Conn. 563, 577 (1998),
the Connecticut Supreme Court overturned a jury verdict against an alarm
company for injuries incurred by firefighters in a brake failure when they
were responding to a false alarm. The court noted, “[w]e focus our
decision, therefore, equally on the policy implications of this case rather
than strictly upon the foreseeability of the plaintiffs’ harm.” Id. at 576‐77;
see also RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 387‐88 (1994)
(finding no duty as a policy matter because the relationship between
increased insurance premiums and defendant’s conduct was too
attenuated).
More recently, in Mercier v. Greenwich Acad., Inc., No. 13‐CV‐4 (JCH),
2013 WL 3874511, at *5 (D. Conn. July 25, 2013), a federal judge applying
Connecticut law declined to impose a duty on a coach and school after a
player was injured during a basketball game. The court reasoned that
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No. 14‐2410‐cv
Connecticut public policy weighs in favor of encouraging “vigorous
participation in recreational sporting activities,” even if those activities
create safety risks. Id. at *4 (quoting Jaworski, 241 Conn. at 408). Holding
the coach responsible, the court concluded, would chill the coach’s role of
encouraging competition in sports. Id. at *5.
Cases like Jaworski and Mercier indicate that courts place a high
value on recreational activities for children, even if they sometimes create
safety concerns. Although the present case does not involve competitive
sports, it also implicates important questions of public policy because of
the benefits of educational trips for children.
Connecticut courts addressing public policy questions have
considered four factors to determine whether to impose a duty in
negligence cases: “(1) the normal expectations 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.” Monk v.
Temple George Assocs., LLC, 273 Conn. 108, 118 (2005) (internal quotation
marks omitted). The four public policy factors do not point to an obvious
answer in this case as both parties present colorable arguments on either
side.
First, the expectations of the parties depend on the level of
generality applied to describe the events that occurred in this case. Parents
and children participating in a school‐sponsored international trip might
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No. 14‐2410‐cv
expect a school to warn about or protect against some of the risks of the
trip, including potentially the dangers of serious insect‐borne diseases.
However, as Hotchkiss and several amici point out, it is unreasonable to
expect a trip organizer to warn students about or protect them against
every danger. Field trips are intended to expose children to situations
outside of their comfort zones and of the organizers’ control. Such trips
thus naturally entail a certain level of risk. Here, the risk of contracting
tick‐borne encephalitis was undeniably remote. No American had ever
before contracted TBE in China. Thus, although travelers may generally
expect a school to warn about or protect against dangers, including serious
insect‐borne diseases, no one could have expected that Munn would
contract TBE.
Second, international trips and outdoor activities, while sometimes
posing substantial health and safety risks, offer important benefits to their
participants. The public benefits of international education and student
exchanges are written into Connecticut statutory law. Connecticut General
Statute Section 10‐27(a) states:
It shall be the policy of the state to encourage its students,
teachers, administrators and educational policy makers to
participate in international studies, international exchange
programs and other activities that advance cultural awareness
and promote mutual understanding and respect for the
citizens of other countries.
At the same time, the safety of minors, who in varying degrees are under
the care and protection of schools on these trips, is an important concern.
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No. 14‐2410‐cv
Minors on such trips are in the custody of the organizations leading them,
and the health and safety of the children must have a bearing on how these
trips are conducted.2
Third, this case is likely to have repercussions on litigation in the
area of child safety, especially in light of the substantial damages awarded
to these plaintiffs. If the award stands, it would set an important precedent
for negligence cases arising from educational trips. In fact, the effects of
this case are already manifest. Munn’s attorney recently brought another
lawsuit in which the plaintiff seeks the same damage award for contracting
Lyme disease at a YMCA camp. Horowitz v. YMCA Camp Mohawk, Inc., 13‐
cv‐1458 (D. Conn. 2013). This case is likely to encourage future victims of
unusual accidents on educational trips to seek compensation, placing a
heavy financial burden on trip providers. On the other hand, it is
reasonable to suppose that such liability could also cause an increase in
diligence on the part of trip providers, potentially avoiding catastrophic
injuries such as befell Munn. See Monk, 273 Conn. at 120.
Fourth, no case is exactly analogous to this one, but courts in several
other jurisdictions have declined to impose a duty in similar cases and
have construed the duties of schools more narrowly. In David v. City of
New York, 40 A.D.3d 572, 574 (N.Y. App. Div. 2007), the court found that a
Notably, while encouraging international exchange programs, the
2
Connecticut legislature has not, as at least one other state has, enacted a statutory
immunity for school trips. See Cal. Educ. Code § 35330(d).
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No. 14‐2410‐cv
school did not breach a duty of supervision where a child was injured on a
hay ride. The court noted that previous hay rides had occurred without
incident and that the school had “no knowledge or notice that [the] hay
ride would be hazardous.” Id. In Mancha v. Field Museum of Natural History,
5 Ill. App. 3d 699, 702 (1972), the court declined to impose a duty where a
child on a field trip was assaulted by unaffiliated students. The court
found that “the risk that a 12‐year‐old boy would be assaulted in a
museum is minimal” and that recognizing a duty would impose a
significant burden of supervision on the school. Id. It stated:
A teacher cannot be required to watch the students at all times
while in school, on the grounds, or engaged in school‐related
activity. If the law imposed such burdens it would well
discourage schools and teachers from affording opportunities
to children to enjoy the many extracurricular activities. It has
long been recognized that something other than classroom
teaching is needed for a sound education. Learning is not
confined to books.
Id. These two cases indicate efforts by other jurisdictions to encourage
extracurricular activities by limiting the duties of schools to warn about or
protect against unlikely or unusual events. At the same time, there are also
instances where courts have found that schools owe a duty in the context
of extracurricular activities. See, e.g., City of Cedar Falls v. Cedar Falls Cmty.
Sch. Dist., 617 N.W.2d 11, 16‐18 (Iowa 2000) (school district liable for
negligence resulting in kindergarten student’s death in golf cart accident
during field trip); Travis v. Bohannon, 128 Wash. App. 231, 239 (2005)
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No. 14‐2410‐cv
(school district owed duty of care to high school students participating in
off‐campus “Workday”).
Upon review of these four factors and of Connecticut precedent in
negligence cases, we are unable to determine whether Connecticut public
policy supports imposing a duty to warn or protect in this case. Although
prior Connecticut decisions in the area of recreational sports suggest that
public policy may favor placing limits on schools’ legal duties in the
context of school trips because of their educational benefits, no case has yet
addressed this precise question and no case is close to the facts of this case.
2. Certification
Because Connecticut case law does not offer sufficient guidance on
the question of public policy in negligence cases, we think it best to let the
Supreme Court of Connecticut determine whether Connecticut public
policy supports imposing a legal duty on Hotchkiss.
Our court rules and Connecticut law enable us to certify a question
to the Supreme Court of Connecticut “if the answer may be determinative
of an issue” in a case before us and “if there is no controlling appellate
decision, constitutional provision or statute.” Conn. Gen. Stat. § 51–
199b(d); see 2d Cir. Local R. 27.2; see also Caruso v. Siemens Bus. Commcʹns
Sys., Inc., 392 F.3d 66, 71 (2d Cir. 2004) (certifying question where “no
Connecticut court has ever provided an authoritative answer”).
“Certification is especially important in categories of cases where, unless
there is certification, the state courts are substantially deprived of the
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No. 14‐2410‐cv
opportunity to define state law.” Gutierrez v. Smith, 702 F.3d 103, 116 (2d
Cir. 2012). We have “long recognized that state courts should be accorded
the first opportunity to decide significant issues of state law through the
certification process,” and that, especially where the issues “implicate[] the
weighing of policy concerns, principles of comity and federalism strongly
support certification.” Parrot v. Guardian Life Ins. Co. of Am., 338 F.3d 140,
144 (2d Cir. 2003), certified question answered, 273 Conn. 12 (2005).
Certification is appropriate in this case for at least three reasons.
First, as discussed above, Connecticut case law provides limited guidance
on this issue and no prior case is authoritative here. Whether Hotchkiss
owed a duty of care is determinative in this case. Second, the scope of duty
in negligence law is “paradigmatically a state field,” typically addressed
by state, rather than federal, courts. Id. at 145 (internal quotation marks
omitted); see also Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d
Cir. 2013) (certifying to Connecticut Supreme Court where “question is one
of state law and is vigorously argued on both sides”). Third and most
importantly, this case is likely to have repercussions beyond this particular
fact pattern as it implicates broad questions of Connecticut public policy.
Defining the scope of a school’s duty when it leads an international
trip could have significant consequences for negligence litigation in
Connecticut, which is home to many private and public schools. Although
cost‐benefit analysis in most cases assumes that all interested parties are
represented in the case, this is not so here. The societal impact of finding a
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No. 14‐2410‐cv
duty here extends far beyond Hotchkiss. To impose a duty on Connecticut
schools to warn about or protect against risks as remote as tick‐borne
encephalitis might discourage field trips that serve important educational
roles. See generally Philip K. Howard, The Collapse of the Common Good
(2001). If the costs imposed on schools and non‐profit organizations
become too high, such trips might be curtailed or cease completely,
depriving children of valuable opportunities.3 Public policy may thus
require that participants bear the risks of unlikely injuries and illnesses
such as the one that occurred in this case so that institutions can continue
to offer these activities.
On the other hand, imposing a duty of reasonable care on Hotchkiss
may not have the effect of increasing litigation. If schools take steps to
protect students from foreseeable harms, legal actions may in fact
decrease. Alternatively, those actions premised on an absolute demand to
ensure student safety “as opposed to the failure . . . to take reasonable
precautions, likely will be dismissed in the absence of negligence.” Monk,
273 Conn. at 120. Balancing these factors is a task primarily for state
decisionmakers rather than federal courts.
3 For more discussion of the risk that excessive tort liability might deter
socially beneficial activities, see Steven Shavell, Foundations of Economic Analysis
of Law 177‐206 (2004).
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No. 14‐2410‐cv
We conclude that certification would allow Connecticut to carefully
consider and weigh the policy concerns at play in this case and to shape its
own state negligence law as to the responsibilities of schools on field trips.
B. Remittitur
This case is also unusual because of the large award granted to the
plaintiffs. The public policy implications of the $41.5 million awarded in
damages also lead us to certify the issue of remittitur to the Supreme Court
of Connecticut.
Because Connecticut law governs the claims for relief in this
diversity case, it also governs the excessiveness of the verdict and the
question of remittitur. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415,
429‐31 (1996). To determine whether to grant remittitur, a trial court must
evaluate “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 partiality, prejudice, mistake or corruption.” Birgel v. Heintz,
163 Conn. 23, 28 (1972). On appeal, “we are limited to determining
whether the trial court abused its discretion in denying the motion to set
aside the verdict.” Champagne v. Raybestos‐Manhattan, Inc., 212 Conn. 509,
557 (1989).
In Champagne, the Connecticut Supreme Court ordered remittitur on
a $320,000 loss of consortium award for a wife whose husband became sick
from his exposure to asbestos at work. Despite the limited scope of
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appellate review in this area, the court concluded that the award was
excessive. It found that the “evidence of the loss of consortium is sparse,
especially when viewed in the time frame that it is suggested to
encompass.” Id. Similarly, in Buckman v. People Express, Inc., the court
concluded that a $50,000 award was excessive for a plaintiff who suffered
emotional distress because he was temporarily “under the impression that
he had no medical coverage.” 205 Conn. 166, 167 (1987). Again, the court
found that the evidence did not support the award, and it noted that “the
jury . . . could not reasonably have found that the plaintiff is entitled to
recover $50,000.” Id. at 176. These two cases indicate that Connecticut
appellate courts can overturn jury awards or order remittitur where the
evidence does not support the size or scope of the jury’s damages award.
In several other cases, however, Connecticut courts have upheld
large jury awards for disastrous injuries. See, e.g., Mather v. Griffin Hosp.,
207 Conn. 125 (1988) ($9 million—roughly $18 million adjusted for
inflation—for medical malpractice in infant’s delivery that resulted in
cerebral palsy); Pelletier v. Sordoni/Skanska Constr. Co., No.
X06CV950155184S, 2006 WL 760140, at *3 (Conn. Super. Ct. Mar. 9, 2006)
($22.7 million award for injury that severed plaintiff’s spinal cord), rev’d on
other grounds, 286 Conn. 563 (2008); see also Pouliot v. Paul Arpin Van Lines,
Inc., 235 F.R.D. 537 (D. Conn. 2006) ($20 million non‐economic damages for
permanent impairment of 92% of plaintiff’s body, causing plaintiff mental
anguish and depression).
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Here, the record makes it difficult to determine how the damages
relate to the evidence at trial. Munn has suffered serious permanent
injuries that alter her everyday life. The parties do not debate that the
disease has limited Munn’s ability to express herself and to control her
facial expressions. However, the attorneys gave no guidance on non‐
economic damages in their summations. While the plaintiffs’ attorney
offered a detailed calculation of economic damages, he spoke only in
generalities about non‐economic damages, emphasizing Munn’s injuries
and her loss of enjoyment. Hotchkiss’s attorney did not discuss non‐
economic damages at all when she spoke to the jury. The evidence at trial
and the attorney summations thus offer little basis on which to explain
how the jury chose to award $31.5 million in non‐economic damages.
Although non‐economic damages are always abstract—pain and suffering
are difficult to quantify—this problem is particularly salient in this case
because of the size of the non‐economic damages, which are more than
three times the economic damages, and the lack of discussion in the record
about non‐economic damages.
Moreover, the large damages awarded in this case are intertwined
with the broader public policy issues relating to educational trips
discussed in the previous section. The enormous award magnifies the
effects of the lawsuit on organizations offering educational trips. The $41.5
million in damages might have a chilling effect on educational trips.
Indeed, such awards could have existential consequences for schools or
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organizations hosting these trips. Although insurance may cover a portion
of damages in such lawsuits, awards of this magnitude might lead to
significantly increased premiums. The damages might discourage schools
and other organizations from offering such trips for fear that they will
suffer a crippling lawsuit.
Because the damages are inextricably linked to the broader public
policy issues in this case, we deem it prudent to certify the issue of
remittitur to the Connecticut Supreme Court. The Connecticut Supreme
Court has never considered the excessiveness of an award of this
magnitude, nor has it provided specific criteria for evaluating these
awards. And damages in negligence cases are also “paradigmatically a
state field.” Finally, the size of this award makes it likely that it will have
repercussions far beyond this case and affect the whole industry of
educational trips. For these reasons, we leave it to the Supreme Court of
Connecticut to determine whether and how remittitur might help shape
state public policy on educational trips.
CONCLUSION
We address only the duty question and remittitur, and we do not
reach the other issues raised in this appeal because the Connecticut
Supreme Court’s answers on the public policy questions could be
determinative.
For the reasons stated above, we certify two questions of law to the
Connecticut Supreme Court: (1) Does Connecticut public policy support
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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
an award of approximately $41.5 million in favor of the plaintiffs, $31.5
million of which are non‐economic damages, warrant remittitur?
The Connecticut Supreme Court may modify these two questions as
it sees fit and, should it choose, may direct the parties to address other
questions it deems relevant. This panel retains jurisdiction over this case
and will decide any remaining issues once the Connecticut Supreme Court
has ruled.
It is therefore ORDERED that the Clerk of this court transmit to the
Clerk of the Connecticut Supreme Court a Certificate, as set forth below,
together with this decision and a complete set of the briefs, appendices,
and record filed in this court by the parties.
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