14

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Munn v. Hotchkiss Sch.

In the

United States Court of Appeals

For the Second Circuit

________

A UGUST T ERM

, 2014

A RGUED : M AY 4, 2015

D ECIDED : A UGUST 3, 2015

No. 14

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‐ cv

O RSON D. M UNN

, III, AS P ARENT & N EXT F RIEND OF C.M. & I ND

., C HRISTINE

M UNN

, AS P ARENT & N EXT F RIEND OF C.M. & I ND

., C ARA L. M UNN

, Plaintiffs

‐ Appellees,

v.

T HE H OTCHKISS S CHOOL

, Defendant

‐ Appellant.

________

Appeal from the United States District Court

for the District of Connecticut.

No. 09

‐ cv

‐ 919

– Stefan R. Underhill, Judge

.

________

Before: W ALKER

, L YNCH

, and L OHIER

, 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 andNo. 14

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‐ cv

2 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?

________

W ESLEY W. H ORTON

, 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

.

A NTONIO P ONVERT III, Koskoff Koskoff & Bieder,

Bridgeport, CT (Alinor C. Sterling, Koskoff Koskoff &No. 14

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‐ cv

3 Bieder, Bridgeport, CT, on the brief ), for Plaintiffs

‐ Appellees.

________

J OHN M. W ALKER

, J R

., 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?No. 14

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4 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 mentionedNo. 14

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5 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 motherNo. 14

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6 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,No. 14

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7 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.No. 14

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8 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.No. 14

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9 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.No. 14

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10 399, 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 evidenceNo. 14

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11 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,No. 14

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12 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. Int ʹ l 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. HotchkissNo. 14

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13 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 defendant ʹ s

responsibility should extend to such results.

Murillo v. Seymour Ambulance Ass ʹ n, Inc.

, 264 Conn. 474, 479

‐ 80 (2003)

(internal quotation marks and alterations omitted).No. 14

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14 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 thatNo. 14

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15 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 mightNo. 14

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16 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.No. 14

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17 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

2 Notably, while encouraging international exchange programs, the

Connecticut legislature has not, as at least one other state has, enacted a statutory

immunity for school trips. See Cal. Educ. Code § 35330(d).No. 14

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18 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)No. 14

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19 (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. Commc ʹ ns

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 theNo. 14

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20 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 aNo. 14

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21 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).No. 14

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22 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 ofNo. 14

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23 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).No. 14

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24 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 orNo. 14

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25 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 supportNo. 14

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26 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.