ROGERS, C.J.
The issues in this case, which comes to us on certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199b(d),
The following facts, which find support in the record certified by the Second Circuit, and procedural history are relevant to our resolution of the certified issues.
In 2009, the plaintiff filed a diversity action in the United States District Court for the District of Connecticut, alleging that the defendant had been negligent by, inter alia, failing to warn students and their parents of the risk of exposure to insect-borne diseases and failing to ensure that the students took protective measures against insect bites prior to visiting Mount Panshan. The case was tried to a jury in March, 2013. The jury returned a verdict in the plaintiff's favor, and it awarded her $10.25 million in economic damages and $31.5 million in noneconomic damages. The award was then reduced pursuant to a stipulated collateral source reduction.
The defendant thereafter challenged the verdict, moving for judgment as a matter of law; see Fed. R. Civ. P. 50(b); or, alternatively, for a new trial. See Fed. R. Civ. P. 59. The District Court rejected each of the claims the defendant made in support of those motions, including that the plaintiff's infection with tick-borne encephalitis was unforeseeable, that public policy precluded the imposition of a legal duty on the defendant and that the noneconomic portion of the damages award was excessive as a matter of law. The defendant appealed from the District Court's judgment to the Second Circuit Court of Appeals, challenging its determinations on each of those claims. The Second Circuit agreed with the plaintiff that there was sufficient evidence presented at trial for the jury to find that her illness was foreseeable; Munn v. Hotchkiss School, 795 F.3d 324, 330 (2d Cir. 2015); but, finding insufficient guidance in existing Connecticut law, certified to this court the issues of whether Connecticut public policy supports the imposition of a duty on a school to warn about or to protect against the foreseeable risk of a serious insect-borne disease when organizing a trip abroad and, if so, whether the jury's damages award, particularly the noneconomic portion, warranted a remittitur. Id., at 337.
We first consider whether Connecticut public policy supports the imposition of a duty on a school to warn about or protect against the foreseeable risk of a serious insect-borne disease when it organizes a trip abroad. Because it is widely recognized that schools generally are obligated to exercise reasonable care to protect students in their charge from foreseeable dangers, and there is no compelling reason to create an exception for foreseeable serious insect-borne diseases, we conclude that the imposition of such a duty is not contrary to Connecticut public policy and, accordingly, answer the first certified question in the affirmative.
The following additional facts that the jury reasonably could have found in support of its verdict are relevant. In the spring of 2007, Jean Yu, the director of the defendant's Chinese language and culture program and the leader of the trip, and David Thompson, the director of the defendant's international programs, provided the students who would be traveling to China with information about the trip. A list of places that the students would be visiting included "Mount Pan"
The students and parents also received some written medical advice for the trip in an e-mail including a hyperlink to a United States Centers for Disease Control and Prevention (CDC) website that erroneously directed users to the page addressing Central America, rather than the one addressing China. The same document, as well as a generic predeparture manual produced by Thompson's office, indicated that the defendant's infirmary could serve as a travel clinic, although the infirmary was not qualified to provide travel related medical advice. Finally, a packing list provided to the students going on the China trip included "[b]ug spray or lotion (or bug spray wipes)," but that item was listed only under the heading "Miscellaneous Items," along with other, seemingly optional things like "[t]ravel umbrella" and "[m]usical instrument." None of the foregoing documents provided any warning about insect-borne illnesses, although other health and medical issues, such as immunizations, prescriptions and sexually transmitted diseases, were discussed.
Prior to the trip, Thompson viewed the page on the CDC website directed at travelers to China. In its discussion of diseases found in the area, the page stated that "[tick borne] encephalitis occurs in forested regions in northeastern China and in South Korea. Protecting yourself against insect bites (see below) will help to prevent these diseases." A section that followed, captioned "Prevent Insect Bites," instructed travelers to use insect repellent containing the chemical compound DEET and to wear long sleeves and long pants when outdoors. At trial, Thompson admitted seeing this information at the time of the trip, and, although he initially contended to the contrary, he subsequently agreed that Tianjin is in northeastern China. Other travel information sources generally available at the time also reported that tick-borne encephalitis was present in northeastern China. See footnote 7 of this opinion. No one on behalf of the defendant, including Thompson, warned students or their parents about the presence of tick-borne encephalitis
The students visited Mount Panshan about two weeks into the trip as part of a weekend excursion outside of Tianjin's city center. Evidence submitted at trial demonstrated that Mount Panshan is a forested peak adjacent to other smaller foothills, surrounded by an exurban landscape.
We turn to the first certified question, which concerns the defendant's duty to the plaintiff. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that [it] is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable.... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general
The second prong of the analysis is necessary because "[a] simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ... but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.... [I]n considering whether public policy suggests the imposition of a duty, we ... consider the following four factors: (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.... [This] totality of the circumstances rule ... is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." (Citations omitted; internal quotation marks omitted.) Id., at 336-37, 107 A.3d 381.
Before turning to the public policy analysis, we pause to examine the broader legal framework that encompasses the specific certified issue. Although the law of negligence typically does not impose a duty on one party to act affirmatively in furtherance of the protection of another, there are certain exceptions to that general proposition. See generally 2 Restatement
As to the rationale for imposing an affirmative duty to protect in this context, "[t]he relationship between a school and its students parallels aspects of several other special relationships — it is a custodian of students, it is a land possessor who opens [its] premises to a significant public population, and it acts partially in the place of parents." (Internal quotation marks omitted.) Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 318 P.3d 871 (App. 2014). As a general matter, "[o]ne ... who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under [a duty to protect the other against unreasonable risk of physical harm]." 2 Restatement (Second), Torts § 314A (4), p. 118 (1965). At heart, "the duty [to protect] derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians...." Mirand v. New York, supra, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; see also 2 Restatement (Second), supra, § 320, comment (b), p. 131 ("[A] child while in school is deprived of the protection of his parents or guardian. Therefore, the actor who takes custody ... of a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him.").
The potential harms to be protected against vary widely. They have included physical and sexual assaults by strangers, other students or school employees; see Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at 745-46, 87 Cal.Rptr. 376, 470 P.2d 360; Rupp v. Bryant, supra, 417 So.2d at 660; Doe Parents No. 1 v. State Dept. of Education, supra, 100 Hawai'i at 42, 58 P.3d 545; Doe v. DeSoto Parish School Board, supra, 907 So.2d at 277; A.W. v. Lancaster County School District 0001, supra, 280 Neb. at 206, 784 N.W.2d 907; Marquay v. Eno, supra, 139 N.H. at 711, 662 A.2d 272; Mirand v. New York, supra, 84 N.Y.2d at 47, 614 N.Y.S.2d 372, 637 N.E.2d 263; Fazzolari v. Portland School District No. 1J, supra, 303 Or.
Regarding the scope of the duty, standard negligence principles apply, within the context of the facts and circumstances of the particular case. "While [a] school is not an insurer of the safety of its students, it is obligated to exercise such care over students in its charge that a parent of ordinary prudence would exercise under comparable circumstances...." (Citation omitted; internal quotation marks omitted.) David v. New York, 40 A.D.3d 572, 573, 835 N.Y.S.2d 377 (2007). The duty a school owes "to students and their parents is, on a general level, a duty to take whatever precautions are necessary reasonably to ensure the safety and welfare of the children entrusted to its custody and control against harm that the [school] anticipates, or reasonably should anticipate." Doe Parents No. 1 v. State Dept. of Education, supra, 100 Hawai'i at 80, 58 P.3d 545. What the duty quintessentially entails is "to exercise reasonable care in ensuring that students are educated in a safe environment free from any unreasonable risks of harm." Id., at 81, 58 P.3d 545; see also Henderson v. Simpson County Public School District, supra, 847 So.2d at 857 ("schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students"). The degree of care required will vary depending on the particular risk at issue, the ages of the students in the school's custody and all of the attendant circumstances. Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at 748, 87 Cal.Rptr. 376, 470 P.2d 360; Doe v. DeSoto Parish School Board, supra, 907 So.2d at 281; Prier v. Horace Mann. Ins. Co., supra, 351 So.2d at 268; see also Haynes v. Middletown, 314 Conn. 303, 314-15, 101 A.3d 249 (2014) (recognizing that school's duty to protect extends to high school students).
In light of the foregoing authorities, it is beyond dispute that, as a general matter, a school having custody of minor children has an obligation to use reasonable care to protect those children from foreseeable harms during school sponsored activities, including educational trips abroad. The question we must consider, then, is whether there is something unique and/or compelling about foreseeable insect-borne diseases that should excuse schools that are organizing educational trips abroad from exercising reasonable care to minimize the possibility that the minors
As this case amply demonstrates, insect-borne diseases can pose significant threats to human health. When insect-borne diseases present serious risks, they become the subject of government warnings
Many measures are available to protect against insect-borne diseases. They include staying away from areas where the insects at issue are known to proliferate, using an appropriate insect repellent, pretreating clothing or gear with the insecticide permethrin, covering exposed skin with clothing and/or hats, showering soon after coming indoors, sleeping in screened areas or with a bed net, and, in the case of ticks, checking one's body thoroughly to find them before they can attach. See Centers for Disease Control and Prevention, "Avoid Bug Bites," available at https://wwwnc.cdc.gov/travel/page/avoid-bug-bites (last visited August 7, 2017), "Diseases Spread by Ticks," available at https://wwwnc.cdc.gov/travel/page/diseases-spread-by-ticks (last visited August 7, 2017). With some insect-borne diseases, preventive medicines or vaccinations are available. If an insect-borne disease is contracted, early recognition of symptoms can ensure that treatment is sought promptly, which, in some instances, could make a difference in the ultimate outcome.
Information directed at travelers about insect-borne diseases, and the measures to protect against them, is not hard to come by. It is freely available on the travel pages published by the CDC;
In light of the foregoing, we believe that the normal expectations of participants in a school sponsored educational trip abroad, involving minor children, are that the organizer of the trip would take reasonable measures to warn the participants and their parents about the serious insect-borne diseases that are present in the areas to be visited and to protect the children from those diseases. School personnel who are organizing an educational trip abroad typically will have superior knowledge of travel planning in general, and the trip itinerary in particular, and, as explained previously, have a general responsibility to protect the minors in their charge while they are away from the custody of their parents. Given the potential dangers posed by serious insect-borne diseases, the existence of methods by which to avoid such diseases and the availability of useful information about them, trip participants naturally would expect the organizer of the trip to pass along appropriate warnings and to use ordinary care to minimize the disease risks posed by the insects in the particular areas to be visited. Trip organizers, for their part, likely would agree that reasonable protective measures, tailored to the risk, are doable and appropriate.
We turn next to the second and third factors of the analysis, namely, the public policy of encouraging participation in the activity at issue, while weighing the safety of the participants, and the avoidance of increased litigation. We recognize, as we must, that there are many benefits to international educational travel, and that it undeniably is the public policy of Connecticut to promote such travel. See General Statutes § 10-27(a) ("[i]t shall be the policy of the state to encourage its students, teachers, administrators and educational policy makers to participate in international studies, international exchange programs and other activities that advance cultural awareness and promote mutual understanding and respect for the citizens of other countries"). We disagree, however, that recognizing that a school's general duty to protect its students includes the responsibility to take reasonable measures to warn about, and to protect against, serious insect-borne disease risks will have a chilling effect on such travel.
In regard to the potential for increased litigation, we are skeptical that recognition of a school's duty to warn about, or protect against, a serious insect-borne illness when organizing an educational trip abroad will lead to a flood of similar actions. Our research has disclosed a dearth of claims with fact patterns similar to the present case, perhaps because the incidence of students contracting serious insect-borne diseases while on educational trips abroad, when appropriate protective measures are taken, is relatively uncommon. Again, information about insect-borne diseases, and the methods to protect against them, is readily available to travel professionals in a number of resources. See footnotes 11 and 13 of this opinion.
Additionally, the mere recognition of a legal duty by no means creates an open and shut case for every potential plaintiff who may contract an insect-borne disease while on an educational trip abroad. "A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.)
As we previously have explained, increased litigation may result in those cases in which, by holding that a duty exists, we effectively are "recognizing a new cause of action or otherwise breaking new ground...." Ruiz v. Victory Properties, LLC, supra, 315 Conn. at 340, 107 A.3d 381; see, e.g., Lawrence v. O & G Industries, Inc., supra, 319 Conn. at 659-60, 126 A.3d 569 (declining to hold that construction companies owe duty of care to workers on job site who lose work and thereby suffer purely economic harm due to accident caused by companies' negligence, because expanding companies' liability to encompass such claims likely would increase greatly pool of potential claimants); Jarmie v. Troncale, 306 Conn. 578, 614, 50 A.3d 802 (2012) (declining to extend doctor's duty to warn patient that medical condition could impair driving ability to third party injured in accident caused by patient "because it would open the door to an entirely new category of claims against health care providers ... thereby greatly expanding [their] liability ... and creating an additional burden on the courts," ultimately "driving up health care costs"). Such is not the case here. Rather, the duty to warn students about, and to protect them against, foreseeable insect-borne diseases is but one specific aspect of the already well established general duty of schools to take reasonable measures to ensure the safety of the minors over whom they have assumed custody. We conclude that the second and third public policy factors support the imposition of a duty on a school to warn about, and protect against, the risk of serious insect-borne diseases when organizing a trip abroad.
We turn to the final public policy factor, the decisions of other jurisdictions. Our research has not disclosed any decision that truly is analogous to the present one. We have reviewed the cases cited by the parties and the amici in addressing this factor and find them to be largely unhelpful. The cases on which the plaintiff relies
The defendant insists that there should be no duty to warn or to protect in the circumstances of this case because the chances of the plaintiff contracting tickborne encephalitis were remote. Although, in a given case, the rarity of a particular illness should be weighed by the jury when determining whether its contraction was foreseeable, or whether the warnings given and protective measures taken by a school satisfied the duty of care, it is not relevant to a public policy analysis, which should be undertaken by a court without reference to the facts of a particular case.
Although the question of whether the defendant properly was proven to be negligent is not before us, we close with the following observation. Although we agree that tick-borne encephalitis is not a widespread illness, when it strikes, the results can be devastating. At the same time, some of the measures one might take to protect against it are simple and straightforward — covering exposed skin, applying insect repellent containing DEET,
In sum, we conclude that the public policy of Connecticut does not preclude imposing a duty on a school to warn about or to protect against the risk of a serious insect-borne disease when organizing a trip abroad. For that reason, we answer the first certified question in the affirmative.
We turn to the second certified question, whether the damages award of approximately $41.5 million, which included noneconomic damages of $31.5 million, warranted a remittitur. We conclude that the award, although sizeable, fell within the necessarily uncertain limits of just damages. Accordingly, we answer the second certified question in the negative.
The following procedural history is relevant. After the jury returned a verdict in the plaintiff's favor and awarded damages of approximately $41.5 million, $31.5 million of which were awarded for pain and suffering, the defendant challenged the award, seeking a remittitur of the noneconomic portion. The defendant did not claim that there was any jury impropriety but, rather, contended that the award was excessive as a matter of law. The District Court, in a comprehensive memorandum of decision, rejected this claim and declined to order a remittitur. The following additional facts are recounted in that court's decision.
Ten days after visiting Mount Panshan, while still in China, the plaintiff began to suffer from a headache, a fever and wooziness. She grew disoriented and was taken to a local hospital. When her condition rapidly deteriorated, the local hospital transferred her to a Beijing hospital. After the plaintiff's parents were contacted, they flew from New York, where the family resides, to Beijing. When they arrived, the plaintiff was partially paralyzed and could not speak; thereafter, she became semicomatose.
After a week in the hospital and a month at a rehabilitation facility, the plaintiff's condition stabilized and improved, but she remains permanently disabled. Most markedly, she cannot speak, but can only utter soft, monosyllabic, childlike sounds. The plaintiff has limited dexterity in her hands, particularly in her fingers, which are too stiff to bend easily. This inhibits the fine motor skills necessary to facilitate typing. The plaintiff also has limited control over her facial muscles, causing her to drool, to have difficulty eating and swallowing, and to exhibit socially inappropriate facial expressions.
The plaintiff has compromised brain functioning, particularly in the area of executive function, which makes it difficult for her to construct multistep solutions to everyday problems. As a consequence, she scores low on tests that gauge problem solving ability. Although her verbal comprehension scores remain at preinjury levels — in the ninety-sixth percentile — her reading comprehension and math comprehension scores have fallen to the third and first percentiles, respectively. Her scores on perceptual reasoning also are low, in the twelfth percentile. In short, although she remains an intelligent person, she has difficulty using her intelligence.
As the District Court explained, however, the plaintiff "is in other ways normal. She still experiences the world much the same way as a person without a brain injury might — she understands what happens around her, she reads, she writes, she feels, she has opinions, and she dreams about her future." With assistance and accommodations, the plaintiff was able to finish high school and, at the time of trial, was enrolled in college.
The District Court commented extensively on the evidence of the plaintiff's suffering, characterizing her condition as "a perfect storm of symptoms that, taken together, magnify individual deficits into a debilitating and humiliating disability." It explained: "[The plaintiff] cannot talk.... She cannot communicate through sign ... nor can she type quickly enough to allow a computer to generate audible words at a natural speed — it takes her a long time to produce a short phrase.
In the District Court's view, the "evidence supported the theory that [the plaintiff's] injuries are uniquely cruel." The court recounted testimony from both of the plaintiff's parents, and from other witnesses, that she had no friends or social life and lived an isolated existence, with her only social contact being online. It noted the plaintiff's belief, to which she had testified, that she will never date or have a family, but, rather, will become an "old spinster." The court further summarized the expert testimony, stating "that it would be difficult for [the plaintiff] to perform the basic tasks necessary to manage her own life, let alone ensure the growth, health and safety of a child."
Describing the emotional effect of her circumstances, the District Court explained that her "solitude stings her acutely," that she had contemplated suicide and that she feels shame when strangers gawk at her in restaurants as she struggles to eat, in a manner described by her father as childlike. It noted expert testimony that the plaintiff was at future risk for depression as her life became less structured. The court continued: "[The plaintiff's] heart broke when a boy that she dated prior to her trip to China dumped her and posted cutting remarks about her on Facebook.... She rages when people assume that she suffers from severe mental retardation, and she cannot correct that impression.... Perversely, [the plaintiff] is arguably in a more emotionally compromised position than some people with more profound cognitive impairments because they may have the odd blessing of not understanding the depth of others' rejection of them. Thus, according to witnesses, [the plaintiff] lives in a peculiar hell: she knows what she has lost, cannot find cathartic expression for that loss and is treated as if she has lost far more. Because she has a normal life expectancy, she may suffer alone in this state for the next sixty-plus years." (Citations omitted; emphasis added.)
The District Court also addressed the plaintiff's physical pain and suffering, namely, her endurance of "a grueling illness and recovery," which at its worst had her paralyzed and semicomatose. For a period of time, the plaintiff had to be fed through a feeding tube that she described as "so painful ... like swallowing pool water three times a day." The plaintiff spent weeks in rehabilitation relearning basic tasks. She remains physically limited in many ways, including an impeded ability to use her arms, hands and legs due to extreme muscle tightness and stiffness. Moreover, the evidence at trial was that, given the nature of her brain injury, she would not be making any further meaningful improvement.
In sum, the District Court stated, "[w]itnesses' accounts and [the court's] own courtroom observations of [the plaintiff's] emotional and physical suffering depict a miserable life." Although the court allowed that the plaintiff had retained some abilities and had partaken in some positive experiences since her illness, "the issue here is not whether [the plaintiff] might cobble together fulfilling moments during her life, [but] whether the jury reasonably could have found that she rarely will be able to do so, and, thus, fairly awarded [the plaintiff] a large amount of money to compensate her for that loss." In the court's view, the plaintiff had "provided the jury with more than enough evidence to reach that pessimistic conclusion."
The District Court rejected the defendant's claim that the jury's award was simply excessive as a matter of law, noting the defendant's concession that there was no evidence "that the [jurors had] ignored
The District Court concluded by propounding unanswerable questions: "What is the price of relying on your parents to find you a prom date? ... How much money replaces the loss of the joy you felt when playing the piano? ... Can you calculate the cost of missing your teenage years, of never maturing socially and emotionally beyond the age of fifteen?" (Citations omitted.) It thereafter upheld the award as falling within the range of reasonable verdicts.
We turn to the applicable law. In Connecticut, "the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion.... Accordingly, the ruling of the [District] [C]ourt on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness." (Citation omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 282, 32 A.3d 318 (2011). Additionally, where, as here, a trial court and a jury have concurred in their determination that a particular damages award is appropriate, that circumstance provides "a persuasive argument for sustaining the action of the court on the motion." (Internal quotation marks omitted.) Birgel v. Heintz, 163 Conn. 23, 30, 301 A.2d 249 (1972); see also Camp v. Booth, 160 Conn. 10, 12, 273 A.2d 714 (1970) ("[t]he refusal of the trial court to disturb the jury's determination adds support to the propriety of the verdict").
The reason for such a deferential standard is clear. "Litigants have a constitutional right to have factual issues resolved by the jury.... This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.... This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded men passed upon by the jury and not by the court." (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). Accordingly, "we consistently have held that a court should exercise its authority to order a remittitur rarely — only in the most exceptional of circumstances"; Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. at 280, 32 A.3d 318; and where the court can articulate "very clear, definite and satisfactory reasons ... for such interference." (Internal quotation marks omitted.) Id., at 283, 32 A.3d 318.
"Proper compensation cannot be computed by a mathematical formula, and there is no iron-clad rule for the assessment of damages." Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984). "In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to
In regard to the type of damages at issue, this court has "long held that the loss of life's enjoyments is compensable in personal injury and wrongful death cases." Mather v. Griffin Hospital, supra, 207 Conn. at 150, 540 A.2d 666. "Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries so long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount." Vajda v. Tusla, 214 Conn. 523, 532, 572 A.2d 998 (1990). "[A]lthough it is difficult to measure emotional distress in terms of money, [a]n award of damages for pain and suffering is peculiarly within the province of the trier of fact...." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008). Such is also the case with "compensation for activities in which the plaintiff engaged, prior to [her] injury, which, as a result of that injury, are now foreclosed to [her]." Jerz v. Humphrey, 160 Conn. 219, 223, 276 A.2d 884 (1971). Those damages lie in an "extremely uncertain area ... one in which it is quite impossible to assign values with any precision," and, therefore, are best left to a jury. Id.
Giving due consideration to the foregoing principles and the District Court's view of the evidence, we conclude that the non-economic damages awarded in this tragic case, although clearly generous, fall within the acceptable range of just compensation. Although no formulaic process of review applies, we will make a few observations. First, there is no allegation that the jury in this case was prejudiced, incompetent or otherwise compromised, but only that its verdict was improperly large. In only the rarest of circumstances should the size of a verdict, standing alone, warrant setting aside that verdict. We do not believe such circumstances are present here. Importantly, the District Court's careful and thorough review of the verdict, and its ultimate decision to let it stand, provided an important check against any claim of undue sympathy. In upholding the verdict, the judge, who was in a position to evaluate the testimony firsthand and is guided by his oath, training and role as an impartial arbiter, concluded that such sympathy was not present. Second, the plaintiff in this case was very young and, despite her injuries, retained a long life expectancy. Accordingly, the period of time over which she is expected to suffer — sixty-six years — is an extensive one. Further, the evidence at trial suggested that the physical effects of her injuries will worsen as she ages and that her psychological condition will deteriorate as the structure characteristic to a young life abates. Additionally, the plaintiff
The defendant invites us to examine the verdicts returned by other juries in other cases and to engage in an exercise of comparing which plaintiff's injuries are worse. We decline this invitation.
We answer the first certified question, "Yes."
We answer the second certified question, "No."
No costs shall be taxed in this court to either the plaintiffs or the defendant.
In this opinion the other justices concurred.
McDONALD, J., concurring.
With respect to the first certified question, I join part I of the majority opinion, which concludes that Connecticut public policy supports 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. I write separately with respect to the second certified question because, while I am compelled to agree with part II of the majority opinion that the trial court did not abuse its discretion in denying remittitur under the various
The confusion in our remittitur jurisprudence begins with our guidance to the trial courts that are charged with applying it. The majority, drawing on our recent remittitur decisions, presents as a purportedly unified standard what a close examination reveals to be in fact at least four distinct and potentially contradictory standards that govern a court's decision whether to grant or deny a motion for remittitur: "In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict.... Upon completing that review, [1] the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant.... [2] The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption.... The court's broad power to order a remittitur should be exercised [3] only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions.... This court has upheld a remittitur order [4] only when we have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Citation omitted; internal quotation marks omitted.)
As we previously have acknowledged, certain aspects of these tests — whether the damages award is plainly excessive or exorbitant, and whether it shocks the court's sense of justice
It certainly is possible to reconcile these various expressions of the governing legal
Although it is arguably possible to reconcile the various standards to be applied by the trial court, the same cannot be said for the standards by which we purport to review a trial court's decision to grant or deny a remittitur. The majority paradoxically notes that "the proper standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion." (Emphasis added; internal quotation marks omitted.) This is precisely what prior case law has dictated. Nonetheless, this oxymoronic statement of the law would seem to subject purely legal determinations, which ordinarily are reviewable de novo, to a deferential and fact-specific abuse of discretion standard of review.
Since this peculiar iteration of the standard of review for remittitur decisions emerged in the early 1980s,
We also have provided conflicting accounts of precisely how a trial court exercises its discretion in determining that an award is excessive as a matter of law. Compare, e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 665, 935 A.2d 1004 (2007) (only after finding that award is excessive as matter of law may court, in exercise of its discretion, reduce jury award), with Alfano v. Insurance Center of Torrington, 203 Conn. 607, 614, 525 A.2d 1338 (1987) (if court determines that award is excessive it is required to order remittitur, but amount remitted rests within court's discretion) and Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 110, 952 A.2d 1 (2008) (decision rests entirely within court's discretion).
Finally, our cases display some confusion over whether (1) General Statutes § 52-216a; see footnote 4 of this concurring opinion; now governs the granting and review of all remittitur claims, or (2) whether the common-law standard continues to govern most such claims, with § 52-216a governing only those remittitur decisions arising under circumstances in which a jury is unaware of the existence of a potentially relevant settlement or release agreement between a party and a joint tortfeasor. Compare Bovat v. Waterbury, 258 Conn. 574, 599, 783 A.2d 1001 (2001) ("[t]he express language of § 52-216a suggests that the statute applies solely to actions in which there are, or could be, joint tortfeasors"), with Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. at 281, 32 A.3d 318 (reviewing remittitur pursuant to § 52-216a despite absence of any joint tortfeasors, release, or settlement agreement); see also Wichers v. Hatch, supra, 252 Conn. at 186-87, 745 A.2d 789 (statute codifies common law of additur and remittitur).
The lack of clear and consistent standards for the review of excessive jury awards, particularly with respect to noneconomic damages, is troubling on many levels. Neither the defendant, The Hotchkiss School, nor the insurers that underwrite the risks of schools similarly situated to the defendant that offer study abroad programs, possibly could have anticipated the magnitude of the verdict in the present case. The unfortunate consequences that may flow from the uncertainty created thereby include, among others, significantly increased premiums or policy exclusions for noneconomic damages, either of which might discourage schools and other organizations from offering such trips, which are broadly viewed as a beneficial educational and social experience.
The lack of clear and definite standards also is worrisome in light of the legal scholarship suggesting that civil damages awards may be tainted by socioeconomic and racial disparities. See, e.g., A. Chin & M. Peterson, "Deep Pockets, Empty Pockets: Who Wins in Cook County Jury Trials," Institute for Civil Justice (Rand Corp. 1985) pp. v, viii, 29, 38-40 (reviewing 9000 civil jury verdicts in Illinois and concluding that race had "a pervasive influence on the outcomes," with black plaintiffs receiving substantially smaller awards than white plaintiffs for comparable injuries); see also Martin v. Charleston Area Medical Center, 181 W.Va. 308, 312, 382 S.E.2d 502 (1989) ("it is well documented that some jury awards are affected by the race of the plaintiff"). I am not aware of any empirical evidence that such disparities are present in Connecticut's civil justice system. Nor do I have any objective basis to conclude that the virtually unprecedented award in the present case would have been lower if the plaintiff Cara L. Munn
Ultimately, if I were to review the damages award in the present case de novo, I likely would find that the award of $31.5 million in noneconomic damages so shocks my sense of justice as to compel the conclusion that the jury must have been motivated by sympathy for the plaintiff. I do not mean in any way to minimize the tragic and life altering injuries that the plaintiff has sustained. There is clear evidence of profound loneliness. She suffers the debilitating effects that often result when one has a visible disability. The prime of her youth is lost to her, and many of her childhood dreams are unattainable, or at least appear to be at this point in time.
At the same time, I cannot ignore the fact that juries frequently award noneconomic damages that are orders of magnitude lower to plaintiffs whose injuries are, by any objective standard, at least as grievous: individuals who spend each day of their lives in excruciating pain, or whose injuries leave them incapable of even the most basic forms of self-care and human interaction. Although much has been taken from the plaintiff, much abides. On the basis of testimony to the jury at trial, the plaintiff can still undertake travel, pursue her studies, engage in exercise, seek work, and play some sports. Although the plaintiff's suffering is substantial, the jury in the present case was not presented with any structured basis, or expert testimony, or quantitative evidence of any sort that would have led them to the $31.5 million figure or that reveals any nexus whatsoever between the plaintiff's noneconomic injuries and this virtually unprecedented award. See Munn v. Hotchkiss School, 795 F.3d 324, 336 (2d Cir. 2015).
I return to where I began. Notwithstanding the untenable legal foundation on which we review these things, on the basis of our (internally inconsistent) precedents as they presently stand, I am compelled to conclude that the trial court did not abuse its discretion in denying remittitur in this case. The parties have not asked us to clarify our remittitur jurisprudence at this time, nor have they asked us to reconsider our oft-stated position that the denial of a motion for remittitur is, in most instances, reviewable only for abuse of discretion. Accordingly, because I perceive nothing in the record that would compel the conclusion that the United States District Court for the District of Connecticut abused its discretion in denying the defendant's motion, I agree with the majority that the answer to the second certified question is "no." If the legislature is not inclined to provide further guidance, however, then I trust that we will address these issues in due course.
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 legislature and not of this court to exempt schools from liability for remote harms such as insect-borne
I begin by reviewing the relevant legal standards. As the Court of Appeals recognized; id., at 329-30; our law permits a jury to find that a harm is foreseeable only if "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...." (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., at 409, 54 A.3d 553. "Accordingly, the fact finder must consider whether the defendant 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" [citation omitted; internal quotation marks omitted]). Negligence is, therefore, to be distinguished from an accident, insofar as "an accident is an unexpected happening [whereas] negligence is based on something reasonably 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. at 409, 54 A.3d 553 ("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. at 577, 717 A.2d 215 ("the brake failure of a negligently maintained fire engine is beyond the scope of the reasonably foreseeable risks created by the transmission 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
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 extensive 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 environments. 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
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 promising 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 infinitesimally 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 ... transmission 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 classmates 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 contracting TBE during her brief field trip to Mt. Pan,
It bears emphasizing in this respect that the only reason that it was even conceivably foreseeable that an American tourist would contract TBE while sightseeing at Mt. Pan was because TBE may have been identified 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 TBE
In light of the abundant, authoritative, and uncontroverted 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 plaintiff] would contract TBE." Munn v. Hotchkiss School, supra, 795 F.3d at 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 definition, render that outcome unforeseeable.
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 programs 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 understood to cover only China's far northern border areas with Russia and Inner Mongolia.
In response, the plaintiff's counsel showed Thompson 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,
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 diseases, 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 at 330. That is certainly one possibility, that sometime between April 13 and early June, 2007, the CDC suddenly changed its assessment 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 precipitated 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 defendant 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 visited 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.
The District Court, in concluding that there was sufficient 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 at 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.
Turning first to the magnitude of the risk prong of the equation, no one disputes
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,
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 precautions with respect to all of the other singular risks that attend foreign travel. As the Court of Appeals recognized in certifying the duty question to this court, "this case is likely to have repercussions beyond this particular fact pattern as it implicates broad questions of Connecticut public policy." Munn v. Hotchkiss School, supra, 795 F.3d at 334.
The defendant's staff could have spent many pages and many hours warning their students about and preparing 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
Even under an economics based approach, then, it makes no sense to require that a school warn and prepare its students against each and every remote but potentially serious risk that awaits international travelers. 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 procedure 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 adoption 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 potentially serious outcome has the aggregate effect of inuring us to more substantial risks or discouraging participation in generally safe and wholesome activities.
I turn next to the other side of the Learned Hand equation, the question of whether the protective measures 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 "provid[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 at 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 teachers 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." (Emphasis 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 employees 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
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 measure would be too onerous. But the relevant question is whether a reasonable school or parent, ex ante, knowing 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 uncomfortably 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.
What about the bug spray? It is true that DEET is deemed by the federal government to be safe for human use.
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
As evidenced by the literature that the defendant's trip chaperones provided to the students and their families, simply protecting students from the most common risks faced by overseas travelers requires constant vigilance toward a broad range of threats. Students travelling 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 information, 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 cautious at train stations, shopping areas, and public transportation; 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 American sexual values; remember that blood transfusions may carry a risk of HIV infection; prepare for temperature changes and rain; be mindful of feelings of home-sickness, boredom, fatigue, physical discomfort, depression, helplessness, and hostility to the host culture; 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 defendant 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.
Returning to the point I made before, none of those safety measures, standing alone, is especially oppressive 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 inconvenience. 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 protective 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.
Finally, if we are going to weigh the economic costs and benefits associated
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. at 631-32, 96 A.2d 309; 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]).
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) (directing judgment dismissing complaint arising from unprecedented 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 California
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 foreseeable; Munn v. Hotchkiss School, supra, 795 F.3d at 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. Providers will have to conduct their affairs, plan their itineraries, 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.
Before this court, the defendant again suggests that its own trial exhibit, as well as Thompson's testimony that he had seen the contents of that exhibit prior to the trip, is not reliable evidence. Because a determination of the competence of the evidence in this case is well beyond the scope of the certified questions, we must accept the conclusion of the Second Circuit that the jury properly relied upon that evidence.
Throughout its brief, the defendant emphasizes the remoteness of the risk of contracting tick-borne encephalitis. Although that factor is relevant to the duty analysis, it mainly informs the issue of foreseeability. We agree with the District Court that the public policy aspect of the duty analysis does not afford the defendant a new opportunity to relitigate the issue of foreseeability. See 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 7, comment (j), pp. 82-83 (2010) (disapproving of use of foreseeability in judicial determinations of whether, for policy reasons, no duty should exist); see also A.W. v. Lancaster County School District 0001, 280 Neb. 205, 212-16, 784 N.W.2d 907 (2010) (explaining why courts should not consider factual issue of foreseeability when making determinations of legal duty).
The defendant contends that this case already has spurred additional, unwarranted litigation, drawing our attention to an action that was filed by the plaintiff's attorney on behalf of another minor who contracted Lyme disease while at camp. See Horowitz v. YMCA Camp Mohawk, Inc., United States District Court, Docket No. 3:13-CV-01458 (SRU), 2013 WL 9981204 (D. Conn. 2013). That case apparently has been terminated with a confidential settlement. In the absence of any information as to the facts of the matter or the terms of its settlement, we decline to speculate as to its import, if indeed there is any.
"That is especially peculiar because decisions of foreseeability are not particularly legal, in the sense that they do not require special training, expertise, or instruction, nor do they require considering far-reaching policy concerns. Rather, deciding what is reasonably foreseeable involves common sense, common experience, and application of the standards and behavioral norms of the community — matters that have long been understood to be uniquely the province of the finder of fact." (Footnotes omitted; internal quotation marks omitted.) A.W. v. Lancaster County School District 0001, supra, 280 Neb. at 212, 784 N.W.2d 907.
In 1982, the legislature amended General Statutes (Rev. to 1981) § 52-216a, which barred a civil jury from being informed of the existence of a settlement or release agreement involving a joint tortfeasor but vested the trial court with discretion to reduce the verdict by the amount of the settlement/agreement, in response to a decision by this court concluding that the trial court's unfettered discretion to reduce the verdict impermissibly intruded on the constitutional role of the jury. See Seals v. Hickey, 186 Conn. 337, 350-53, 441 A.2d 604 (1982); see also Peck v. Jacquemin, 196 Conn. 53, 69, 491 A.2d 1043 (1985). Number 82-406, § 3, of the 1982 Public Acts eliminated the discretionary language and replaced it with language permitting remittitur or additur if the verdict is "excessive as a matter of law" or "inadequate as a matter of law," respectively. The expansive language and limited legislative history of the amendment raised the question of whether the legislature intended not only to address the concerns identified in Seals with respect to joint tortfeasor situations but to limit more generally the discretion of the trial courts to order remittiturs. The substantive legislative history of the amendment is limited to a brief statement by its cosponsor, Representative Alfred J. Onorato:
Although the legislative history suggested an intent to bring Connecticut's law of remittitur into conformity with that of the federal courts and other states, my research indicates that many jurisdictions afforded their trial courts broad discretion in these matters at that time, and also that there was no single prevailing standard governing remittitur out-side of Connecticut. See generally S. Cravens, "The Brief Demise of Remittitur: The Role of Judges in Shaping Remedies Law," 42 Loy. L.A. L. Rev. 247, 250 (2008) ("There is not tremendous consistency in the versions of remittitur employed in various state court systems across the country.... While wording of the standards may vary, the decision whether to grant a remittitur is generally committed to the sound discretion of the trial court."); I. Sann, "Remittiturs (and Additurs) in the Federal Courts: An Evaluation with Suggested Alternatives," 38 Case W. Res. L. Rev. 157 (1987) (canvassing federal jurisprudence); see also I. Sann, supra, 183 ("[t]he line drawn by courts in such cases has varied from court to court and from case to case"); I. Sann, supra, 187 ("[s]ome judges ... seem to grant remittiturs in any case in which the judge disagrees with the verdict"). Accordingly, it is difficult to determine whether, in continuing to treat most remittitur decisions as discretionary matters, we have disregarded the will of the legislature as expressed explicitly in General Statutes § 52-216a.
Moreover, although there were a few brief references at trial to the presence 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.
