Duty While Students Are Abroad

by Kaitlin Mulhere via “Higher Ed“

A group of influential education organizations has stepped in to support a private prep school in its appeal against a former student, saying the case could have far-reaching negative effects on study abroad trips.

Cara Munn suffered brain damage after she contracted viral encephalitis in 2007 from a tick bite she received while on a school trip to China with the Hotchkiss School.

Last year, a Connecticut jury awarded Munn $41 million in damages, after agreeing with her family’s claims that the school had failed to take appropriate precautions and to get proper medical attention quickly enough.

The Hotchkiss School, a private boarding school in Lakeville, Conn., argued that the tick bite and the illness were so unlikely to occur that there was no way to prepare for or prevent them.This week, 28 educational organizations, including big names such as the American Council on Education and the Association of American Universities, and several international education groups filed a court brief on behalf of the Hotchkiss School.

The brief argues that the district court’s decision could harm international education opportunities because it places such a high burden on the Hotchkiss School — and by extension, other schools and colleges — to be aware of any and every possible risk.

The district court’s decision imposes an “unachievable standard that will impede teaching and learning without any meaningful reduction in avoidable harm,” the brief states.

The fact that the court’s decision was made regarding a high school student doesn’t limit the significant effect it could have on study abroad trips at higher education institutions, said Ada Meloy, a lawyer for the American Council on Education, when asked why the organization chose to get involved.

According to the brief, the case raises a question that could have far-reaching consequences: whether a state’s law of negligence means that schools have a duty to warn students about the risk of insect-borne diseases.

The brief focuses on the merits of international education and the necessity of it in today’s globalized world, using that importance as evidence of the harm that could come if colleges or schools are discouraged from sponsoring international trips because they’re held liable for every possible danger.

The district court made two errors in its ruling, according to the brief. One, there wasn’t a government advisory or warning prior to the trip’s departure. When the Centers for Disease Control and Prevention issued an advisory several weeks after the trip ended, it was still far too general to lead to a foreseeable risk of insect-borne disease.

“At best, the advisory would have revealed that ticks carrying encephalitis are sometimes found in forested areas in one-quarter of China,” the brief states.

To support the argument that the court’s finding of the school’s duty was too broad, the brief uses the example of a school trip to New York City. There have been 42 cases of West Nile Virus reported in the city in the past two years, and the city’s health department warns people to take protective measures.

So, the brief states, schools and college would have a duty to tell students to apply bug spray on Fifth Avenue, or watch out for air conditioners falling from window sills or avoid bites from horses pulling carriages near Central Park — all of which the city has issued warnings about.

“It is difficult to imagine all of the possibilities, but easy to imagine frustrated educators deciding not to venture outside the classroom, much less abroad,” the brief states.

When asked Thursday what the appropriate level of responsibility is for schools or colleges — particularly as study abroad trips to more remote and underdeveloped regions grow more common — Meloy said that will likely vary on each particular case.

What’s not reasonable, she said, is holding schools or colleges accountable for things they could have never anticipated.

“There are events that can occur that can be life-changing and tragic and that are simply not foreseeable,” Meloy said. “There just isn’t any action one can take to prevent that tragedy.”

“If you review carefully what went on in the case, the school did do what was reasonable to protect students.” . . . .

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