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The return of the Chinese tick case: Total award to injured student tourist of $41.5 million affirmed on appeal

The return of the Chinese tick case: Total award to injured student tourist of $41.5 million affirmed on appeal

In this week’s travel law article, we re-examine the very important Chinese Tick Case which we first discussed in 2014 [Dickerson Dangerous Student Tours: The Chinese Tick Case, eturbonews (2/6/2014), (8/21/2014)]. After years of appeals the case has finally been resolved by the United States Second Circuit Court of Appeals in Munn v. The Hotchkiss School, No. 14-2410-cv (February 6, 2018) affirming trial court decisions on liability and damages of $41.5 million [933 F. Supp. 2d 343 (D. Conn. 2013); 24 F. Supp. 3d 155 (D. Conn. 2014); see also: 795 F. 3d 324 (2d Cir. 2015)(certified questions to Connecticut Supreme Court), 165 A. 3d 1167 (Conn. Sup. Ct. 2017)(certified questions answered)] awarded to a student of The Hotchkiss School in Connecticut for injuries she sustained during a school sponsored educational trip to China where she contracted tick-borne encephalitis during a hike on Mount Penshan in northeast China. “As a result of being bitten by an infected tick…the plaintiff suffered permanent brain damage that has impacted severely the course of her life”.

Terror Targets Update

Kaduna, Nigeria

In Fight between bandits and militia in northern Nigeria kills 45, travelwirenews (5/6/2018) it was noted that “At least 45 people have been killed after bandits raided a village in northern Nigeria and local militiamen came to their defense. The fighting which took place on Saturday afternoon in Kaduna state, follows a recent spate of attacks in the country’s rural areas”.

Marawi, Philippines

In Solomon & Villamor, Filipinos Get a Glimpse of Their Ruined City, The Chinese Get the Contract, nytimes (4/10/2018) it was noted that “Islamic State loyalists seized Marawi, a predominantly Muslin city of more than 200,000 people on the Philippine Island of Mindanao, more than 10 months ago, leading to months of military siege and devastating American-assisted airstrikes. The residents are finally being allowed to return, but only for a day or two per family to salvage what they can and then leave again. What happens next will depend of how and when the city is rebuilt…will be repaired by a Chinese-led consortium, officials say”.

Mosul, Iraq

In Prikett, ‘Here Is the Graveyard of ISIS’. Mosul Garbage Men Collect Remains. nytimes (5/6/2018) it was noted that “The garbage men laid out and unzipped each body bag, so their supervisor could photograph the remains inside, just in case someone came forward to ask about a missing person…In the end, it was another pile of unidentified bodies in mass graves, like so many others in a country plagued by violence. This time, most of the dead were believed to be Islamic State fighters killed in the final stages of the battle for Mosul. City workers said that since August of last year, they have retrieved and buried an estimated 950 such bodies”.

Hot Lava In Your Own Backyard

In Ramzy, Eruption of Kilauea Volcano Forces Hawaii Evacuations, nytimes (5/4/2018) it was noted that “The eruption of lava from the Kilauea volcano forced residents in two subdivisions on the island of Hawaii to evacuate Thursday. Lava spewed from a crack in the earth following days of small earthquakes around the volcano. Photos and drone footage showed cracks opening up across green yards and roadways and molten rock bursting out”.

Stay Away From India, Please

In India teen battles for life after raped, set on fire: police, travelwirenews (5/7/2018) it was noted that “An Indian girl is battling for her life after allegedly being raped and set ablaze in the eastern state of Jharkhand, police said, after another teenager was burned to death in the same state. The 16-year-old suffered first-degree burns to 70 percent of her body after being set on fire in a village in the Pakus district of Jharkland on Friday, police said”.

Record Airline Baggage Fees

In Josephs, Travelers paid airlines a record $4.6 billion last year to check their baggage, msn (5/7/2018) it was noted that “Many travelers aren’t packing light, a habit that a boon to airlines. Travelers paid U.S. commercial carriers a record $4.57 billion last year in checked bag fees, according to a U.S. Department of Transportation report released on Monday. It’s an eye-popping figure, but the pace of growth from 2016 to 2017-6 percent-is less than half of that from 2015 to 2016. While some passengers may have decided to wear a dress or shirt more than once on a vacation to avoid packing too much, or are using some co-branded credit cards to get a free checked bag, travelers may still find on some trips they’ll have to pay up to check their suitcases”.

New York City Subway Crisis

In Pearce, How 2 M.T.A. Decisions Pushed the Subway Into Crisis, nytimes (5/9/2018) it was noted that “For years, the Metropolitan Transportation Authority told us that rising ridership and overcrowding were to blame. Yet ridership actually stayed mostly flat from 2013 to 2018 as delays rose, and the authority recently acknowledged that overcrowding was not at fault. Instead, two decisions made by the M.T.A. years ago-one to slow down trains and another that tried to improve worker safety-appear to have pushed the subway system into its current crisis. And there’s no easy fix”.

Airbnb Burglars?

In Victor, A Woman Said She Saw Burglars. They were Just Black Airbnb Guests, nytimes (5/8/2018) it was noted that “It was an entirely routine moment: Four people exited the home that had rented on Airbnb in Rialto, Calif., and loaded suitcases into their car. Within minutes, several police cars had arrived and the group was being questioned as a helicopter flew overhead. A neighbor who didn’t recognize them had reported a possible burglary, the police said. They were in fact four creative professionals in town for an event. Now the three black people in the group are suing the Rialto Police Department, saying they were unfairly treated during the April 30 encounter”.

Chinese-Australians Want Respect

In Kwai, 200 Years On, Chinese-Australians Are Still Proving They Belong, nytimes (5/7/2018) it was noted that “This year commemorates 200 years of Chinese migration to Australia. This anniversary comes at a time when Australia is once again conflicted about its relationship with the region’s biggest, most powerful country, and many Chinese-Australians are digging into their families’ archives to share their history with audiences from both China and Australia”.

Los Angeles Home Sharing Ordinance

In Pimentel, LA City Council Limits Airbnb And Home-Sharing, bisnow (5/3/2018) it was noted that “In an effort to address the city’s housing crisis and curb rogue home hotels in neighborhoods, the Los Angeles City Council unanimously approved a proposed ordinance that would severely limit home sharing and short-term rentals. Under the new framework, property owners who use online platforms such as Airbnb, VRBO, Homeaway and other night-to-night rental sites are only allowed to rent out their primary residence and caps the amount to 120 days a year, 60 days less than what it is currently. To go over the 120-day cap, the homeowner must go through an administrative process with the city to receive a permit that includes notifying their neighbors and a review with the city enforcement agency to check that there are no previous citations against the property owner”.

AIDS Runs Rampant In Venezuela

In Semple, AIDS Runs Rampant in Venezuela, Putting an Ancient Culture at Risk, nytimes (5/7/2018) it was noted that “In recent years, amid profound shortages of medicine coupled with widespread ignorance, H.I.V. has spread rapidly throughout the Urinoco Delta and is believed to have killed hundreds of the Warao indigenous people who live in settlements like Jobure de Guayo among the serepentine channels winding through this swampy, forested landscape”.

Travelers Behave, Please

In Revenge of the travel industry: Online reviews of you, travelwirenews (5/7/2018) it was noted that “In a sharing economy. Many of the big players, including Airbnb and Uber, allow drivers and hosts to review their guests. A negative rating can affect your ability to hire another car or rent an apartment. Negative guest reviews can have real consequences, say travelers who have received them. A host can refuse to rent to you, and a driver may not be matched with you”.

Fall In Love With Bees?

In Barone, Fall in Love With Bees on an ‘Apitourism’ Trip to Slovenia, nytimes (5/9/2018) it was noted that “Slovenes have a deep respect for honey bees. ‘If I see dead bees. I call a police SOS number, and they send a special inspector to check out the situation’, said Blaz Ambrozic, the beekeeper at Beekeeping Ambrozic-Kalov Med, his family-owned apiary that’s just one mile from the popular resort town of Bled. With such passion, it’s no surprise that the Slovenian Beekeeper’s Association successfully petitioned the United Nations to proclaim May 20-the birthday of the native Slovene pioneer of modern beekeeping, Anton Jansa-as World Bee Day, celebrating the importance of honey bee preservation and boosting the public’s awareness of how significant bees are to the food supply”. Bravo.

Rainbow Mountain, Tread Lightly Please

In Magra & Zarate, Will tourism Ruin the Rainbow Mountain of Peru?, nytimes (5/3/2018) it was noted that “At first glance, the mountain in the Peruvian Andes, with its bands of soil the color of turquoise, lavender, red-violet and gold, seems Photoshooped. But the otherwordly sight, standing 16,000 feet above sea level is real…The varicolored mountain, with sediment created from mineral deposits over millions of years, was discovered only about five years ago…But it has become a must-see attraction for hikers, bringing much needed cash to the area but also prompting concern about possible damage to the previously unspoiled landscape”.

Hotel Butlers, Anyone?

In Vora, Hotel Butler Service Is Really Nice. Is It Worth The Price?, nytimes (5/7/2018) it was noted that “The St. Regis New York has butlers as an amenity for guests. We arrived ready with requests, from coffee to ironing to cupcakes. Can a butler really make a hotel stay much more extraordinary? For a growing number of luxury properties that have butlers as an amenity for their guests, the answer is a resounding yes. According to Renata McCarthy, a senior lecturer at the School of Hotel Administration at Cornell University, the concept of butlers dates at least as far back as the 18th century in Europe, when a butler was a male who was in charge of the dining and entertainment in wealthy households. ‘Eventually, the idea of a butler seeped into the hotel space in Europe’, she said. ‘And more recently, in an effort to differentiate themselves in a competitive market, more and more top-end hotels are touting that they have butlers to pamper their guests’”.

Traveling With A Disability

In Vora, Six Simple Tips for Smooth Travel With a Disability, nytimes (4/5/2018) it was noted that “Times have changed for travelers who use wheelchairs, are visually or hearing-impaired or have another disability, says Jayne Bliss, a travel adviser with Tzell…’No place is off limits, and hotels, museums and cultural institutions offer more accessibility than ever before’…Here are some of her travel tips…(1) Ask Your Airline for Help…(2) Plan With Your Hotel in Advance…(3) Work With a Travel Agent…(4) Book the Right Guides…(5) Consider a Tour…(6) Visit Accommodating Museums”.

Killing Travelers’ Favorite Perks

In Taylor, Hotels are killing one of travelers’ favorite perks, businessinsider (5/1/2018) it was noted that “Hotels, including Marriott, Holiday Inn Express, and Kimpton are killing the tiny shampoo and conditioner bottles they’ve longed stocked in guest rooms. Hundreds of hotels are replacing the miniature toiletries with larger containers that are attached to the bathroom wall. Not everyone is pleased by the decision, with one business traveler telling the Wall Street Journal that the change is ‘incredibly cheap’ on the part of the hotel industry”.

Give Back The Money, Please

In Haag, Brink’s Truck Spills Cash on Highway, and Drivers Scoop It Up, nytimes (5/3/2018) it was noted that “There was hardly a cloud in the sky over Indianapolis on Wednesday morning when it started raining money. In a moment that instantly tested the core of human morality, the definition of right and wrong…the back door of a Brink’s armored truck swung open during rush hour on Interstate 70, blowing bags of cash onto the highway. There was money-$600,000, troopers estimated-everywhere….At some point during the mayhem, word must spread to people living in the residential area off the interstate…They started jumping fences and frantically stuffing their pockets with cash”.

16,000-Year-Old Horse In Utah

In Holson, An Ancient Horse Is Unearthed in a Utah Backyard, nytimes (5/3/2018) it was noted that “Paleontologists last week identified the skeleton of a horse from the ice age in Lehi,-a particularly unusual discovery given that much of the western part of Utah was underwater until about 14,000 years ago. Buried for thousands of years beneath seven feet of sandy clay, the remains were discovered only when the Hill family began moving dirt around their backyard to build a retaining wall and plant some grass”.

Romanian Rugs, Anyone?

In Whitaker, On The Rug Route in Romania, Kilims and an Enduring Culture, nytimes (5/4/2018) it was noted that “Inspired by the idea that I might find a wealth of kilims at bargain basement prices, I set off from Bucharest on a 10-day, 1,288-mile journey around the central European country in a small Dacia Logan stick shift in search of kilims and the people who still weave them…Bechet is home to Arta La Sat, the weaving studio of Antoneta Nadu. The rug designs from this region, Oltenia, are typically based on nature, featuring flowers, trees and birds. They are my favorite-or at least I thought so at the beginning of the trip”.

Travel Law Case Of The Week

In the Munn case, the Connecticut Supreme Court was asked by the United State Second Circuit Court of Appeals [795 F. 3d 324 (2d Cir. 2015)] to answer two certified questions: “(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 a damages award of approximately $41.5 million, #31.5 million of which are non-economic damages, warrant a remittur”. We answer the first question in the affirmative and the second question in the negative”.

The Facts

“The Hotchkiss School, is a private boarding school located in Lakeville. At the time of the events underlying this appeal, the plaintiff, Cara L. Munn, was a student there. In June and July of 2007, the plaintiff, who recently turned fifteen years old and completed her freshman year, joined other students and faculty of the school on an educational trip to China. In July, she contracted tick-borne encephalitis, a viral infectious disease that attacks the central nervous system, as a result of being bitten by an infected Chinese tick during a hike on Mount Panshan, which is located in a forested area approximately sixty miles from Tianjin, a city in northeastern China. As a result of contracting tick-borne encephalitis, the plaintiff suffered permanent brain damage that has impacted severely the course of her life…The case was tried t a jury in March 2013 (which) returned a verdict in the Plaintiff’s favor, and it awarded her $10.5 million in economic damages and $31.5 million in non-economic damages”.

A School’s Duty To Warn

“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”.

Selecting Tour Components

“The following additional facts tat the jury reasonably could have found in support of its verdict are relevant. In the sing of 2007, Jean Yu, the director of the defendant’s Chinese language and cultural 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’ as part of a Tianjin city tour…The itinerary did not describe ‘Mount Pan’ or indicate that the students would be visiting a forested area”.

Inadequate Medical Advice

“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 (the school) 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 life ‘[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”“ [emphasis added].

CDC Webpage Viewed

“Prior to the trip, Thompson viewed the page on the CDC website directed to travelers to China. In its discussion of diseases fund 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 pats 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 northeast China. Other travel information sources generally available at the time also reported that tick-borne encephalitis was present in northeastern China…No one on behalf of the defendant including Thompson, warned students or their parents about the presence of tick-borne encephalitis in forested regions of northeastern China or the need to protect against the Chinese tick. [emphasis added]

Trekking Up Mount Panshan

“Evidence submitted at trial demonstrated that Mount Panshan is a forested area adjacent to other smaller foothills…No one warned the students to wear clothing that would protect them against insect bites or to apply insect repellent before the trek up the mountain. He group ascended Mount Pansan together on a paved pathway, dressed in shorts and T-shirts or tank tops, but split up on descent. Most students, teachers and chaperones rode a cable car down the mountain. The plaintiff and two or three other students, however were permitted to walk down the mountain by themselves… Along the way, plaintiff received many insect bites and soon developed an itchy welt. Ten days later, she began to experience the first symptoms of tick-borne encephalitis”. [emphasis added]

Duty To Warn

“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…One exception where there is a ‘special relationship’ between the parties and one example…that has received wide recognition, along with a concomitant duty to protect, is the relationship between schools and their students…’[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 wh open [its] premises to a significant public population and its acts partially in the place of parents’…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”…[W]e 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 the 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”.

Remote But Easily Preventable

“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 tick-borne encephalitis were remote…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 he measures one might take to protect against it are simple and straightforward-covering exposed skin, applying insect repellant containing DEET, closely checking one’s body for ticks and/or avoiding the woods in areas where the disease is known to be endemic”.

Damages

“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, t have difficulty eating and swallowing and to exhibit socially inappropriate facial expressions. The plaintiff has compromised drain 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…her reading comprehension and math comprehension scores have fallen to the third and first percentiles, respectively”.

Conclusion

“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?’…It therefore upheld the award as falling within the range of reasonable verdicts”.

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The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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