Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015). (Thanks to the Volokh Conspiracy and How Appealing for bringing the case to our attention.)
Facts and Outcome in the Federal Courts.
Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.
Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut: (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.
What’s Wrong With the Decision to Certify.
At one level, the panel’s decision to certify is understandable. $41.5 million is a huge judgment for a school to have to pay. If the verdict stands, schools might well be advised by their lawyers not to sponsor trips of this sort and related activities. Moreover, the case poses some close questions on issues of breach, actual cause, proximate cause, and the proper estimation of non-economic damages. In short, the Court of Appeals had legitimate grounds for being uncomfortable with the result below.
And yet, in our judgment, the panel erred in certifying the question of duty. Duty, it turns out was pretty much the easiest question in the case. To invite the Connecticut Supreme Court to say otherwise can only create mischief. Insofar as it desired to prompt a reconsideration of Munn, the panel would have done better to certify only the damages question, or to review more closely the district court’s rejection of the defendant’s motion for a new trial.
Breach, Not Duty.
The decision in Munn to certify on duty perfectly illustrates the dangers of a common but problematic way of thinking about the duty element of the negligence tort.
In a nutshell, the lawyers for Hotchkiss argued that, because tick-borne encephalitis is rare, it is unforeseeable, and that, because it is unforeseeable, Hotchkiss had no duty to take measures to protect against it. In turn, they contended that, since duty issues are matters of law, the District Court (and now the Supreme Court of Connecticut) should take the case away from the jury and dismiss it.
There are several flaws in this argument, but the most insidious one is this. When one asks if Hotchkiss had a duty to warn of tick-borne encephalitis, one is actually straddling two questions: (i) whether Hotchkiss’s duty of care to its students includes a duty to protect them against dangers associated with school trips; (ii) whether, assuming there is such a duty, tick-borne encephalitis is so unlikely that the failure to take steps that would protect against it does not count as a breach of that duty. The first is a genuine question of duty, and therefore the one to be resolved as a matter of law by the courts. The second is a breach question and, as a mixed question of law and fact, it is for the jury to decide. Simply put, the unforeseeability of tick-borne encephalitis (if it was unforeseeable) may have raised a breach question, but it did not raise a duty question.
The District Court got all of this exactly right, ruling that of course a school owes a duty of care to a minor student who is on a school trip to exercise reasonable care to protect her against physical injuries that might arise in the course of such a trip. In turn, it allowed the jury to determine whether Hotchkiss’ failure to take various steps that it might have taken to prevent Cara from being infected was unreasonable—i.e., a breach of duty.
Duty and “Policy”.
Hotchkiss obviously fared better on duty before the Second Circuit. Interestingly, it did not do so by convincing the Court of Appeals that the risk of encephalitis was unforeseeable. Rather, it succeeded by invoking the now sadly familiar mantra that questions of foreseeability and duty ‘really’ boil down to the question of whether judges should, in the name of public policy, cut off liability for certain kinds of negligence.
In its principal brief to the Second Circuit, Hotchkiss quoted the Connecticut Supreme Court in Monk v. Temple George Assoc., LLC, 869 A.2d 179 (Conn. 2005):
Connecticut courts do not impose a duty “if doing so would be inconsistent with public policy,” which is determined by weighing 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.” (citation omitted).
It then argued that students like Munn do not expect extraordinary medical knowledge from schools, that student trips to foreign countries are socially valuable, that schools might be overwhelmed by litigation for student injuries if cases like this are allowed to proceed, and that other jurisdictions have ruled for schools in such cases. While the Second Circuit panel did not accept this policy argument, it did accept Hotchkiss’s framing of the issue as requiring a policy decision of this sort. That is why it certified the duty question to the state’s highest court: if policy is to be made via state tort law, it is best for that court to make it.
The easiest way to see what is wrong with the defendant’s argument is to look at the structure and the facts of Monk, the case from which Hotchkiss’ lawyers quoted. There, the plaintiff was slashed by a jealous ex-girlfriend of the plaintiff’s husband. Looking past her assailant, the plaintiff sued the owner of the club in which the ex-girlfriend had initially confronted the plaintiff, and in whose parking lot the attack occurred, asserting that the club had been negligent in failing to provide better lighting and security in its parking lot.
Prior to the 1970’s, courts overwhelmingly dismissed negligence claims like Monk’s. Since then, however, a number of courts have held that certain businesses and property owners—such as operators of parking garages in high-crime areas—can be held responsible for failing to take steps to protect their patrons or invitees against the violent acts of third parties. In Monk, the Supreme Court of Connecticut offered the above-quoted policy factors as reasons to be cautious about holding establishments to a duty to protect patrons against not only criminals, but also individuals who happen to choose their parking lots as the locus in which to carry out their vendettas. As it turns out, notwithstanding its recitation of these grounds for caution, the Connecticut Supreme Court accepted an expansive conception of affirmative duty: Monk won the case.
Taking a step back, one finds that ‘anti-duty’ arguments such as Hotchkiss’s, and ‘pro-duty’ arguments such as Monk’s, proceed within a common framework that we have elsewhere described as “Prosserian” and “Realist.” The premise of the framework is that liability ordinarily should attach to conduct that is careless and causes injury. In other words, there is said to be a presumptive duty to take care against causing physical harm to another. So far so good. But Prosserians then mistakenly proceed from the observation that modern courts have recognized broad duties of care to the conclusion that the duty element of negligence conduct carries no independent weight. In turn, they suppose that the only interesting “duty” cases are potential “no-duty” cases, and that the only interesting issue raised by such cases is whether there are policy considerations—in particular the amorphous threat of too much liability or litigation—that warrant a limitation on the default rule of liability for careless conduct causing injury.
We have long criticized the notion that duty matters in negligence only when there is a “no duty” argument lurking. Relatedly, we have rejected the argument that “no duty” is simply shorthand for too much liability, too much litigation, or some other public policy consideration that warrants denying what would otherwise be a well-formed negligence claim. The question of whether the duty element is satisfied is a question, in the first instance, of whether the plaintiff was situated in relation to the defendant such that—under a fair reading of relevant precedents—the defendant really was obligated to be vigilant of the relevant aspects of the plaintiff’s well being. Thus, when a pedestrian struck by a careless driver sues the driver, she establishes that the driver owed persons such as her a duty of care by invoking the well-established common-law rule holding that a person who drives owes vigilance to those who are situated in relation to his driving such that he can reasonably foresee injuring them were he to drive carelessly.
Once the actual duty question is properly framed, the duty question in Munn can be answered without a moment’s hesitation. A school owes its students a duty to be vigilant of harms that may befall them on a trip organized by the school, and to exercise due care to protect against such harm. This is not some new, exotic, or radically expansionist conception of duty. Indeed, compared to the duty recognized in Monk (the tavern case) it is entirely ho-hum. An undertaking to take care for the minors in their charge is at the core of the relationship between a school and its students. A court recognizing such a duty is not engaging in a policy-based expansion—it is applying long-settled black letter law holding schools to a duty to take reasonable measures to protect students from being injured in school-related activities. It is only a court that would question the existence of such a duty running from Hotchkiss to Munn that would be contemplating radical law reform.
There is a deep irony at work here. The scholars who first insisted that “duty” boils down to policy were progressives who thought that, by recasting duty as calling for open-ended policy analysis, they were enabling judges to reject unduly narrow and moralistic constraints on negligence liability that had been recognized by prior judges. Once the duty question in negligence was revealed to be ‘wide open,’ judges would be free to make ‘good’ decisions, which were generally understood in the period from 1930 to 1980 to involve the expansion of liability and the rejection of previously recognized no-duty rules. Alas, this turned out to be a dangerous game to play. When one regards courts as free to impose a duty for policy reasons if they so choose, one also regards courts as free not to recognize such a duty for policy reasons, if they so choose. In the tort reform era, to understand duty as calling for nothing more than a discretionary policy choice is to invite judges to deny liability based on ill-specified concerns about various policy implications that might result were liability allowed.
Munn clearly demonstrates why the deconstruction of duty has been something of a disaster. Suppose a hypothetical student named Tunn had fallen to his death while on a hike on a dangerous mountain precipice in China that had been selected by Hotchkiss as the site for a school-related activity. Hotchkiss would of course be found to have breached a duty of reasonable care owed to Tunn. And it is clear why: the school would be deemed to have been obligated to look after Tunn’s physical well-being, and would be deemed to have been careless in taking him to a place known to pose a great physical peril. Hotchkiss’s duty to Munn was the very same duty. If it breached that duty—again, a question for the jury—and if the breach resulted in injury to Munn, our law, properly understood, does not regard it as a matter of judicial discretion whether to say, after the fact, that there was no duty.
Of course, there is one important perspective from which it is a matter of judicial discretion whether to reject Munn’s claim on a no-duty ground. Given that the case has been certified, if the Connecticut Supreme Court wishes to dispose of Munn’s claim, and wishes to justify that result on a no-duty rationale, it has the raw power to do so. By the same token, however, it has the power to rule that surgeons do not owe duties of care to their patients, and that contract claims fail for want of consideration amounting to less than $10,000. The interesting question is not whether the court possesses such a power, but whether it would be doing its job if it were to exercise that power in these ways. To that question, the answer is clearly “no.” Negligence law in Connecticut, as in American jurisdictions generally, treats schools as having duties to their students to take reasonable steps to protect them from physical injury within school-run activities.
Assumption of Risk?
There is, finally, one more strand of duty-related thinking that Hotchkiss inserted into its argument before the Second Circuit and that warrants consideration here. It involves the notoriously elusive idea of “assumption of risk.” In fact, Hotchkiss’s lawyers managed to interweave three different assumption-of-risk arguments into their no-duty argument.
First, and most obviously, Hotchkiss pointed out that Munn’s parents had signed a written release in advance of the China trip. The release did little good for Hotchkiss, however. Even apart from the fact that the release is by its own terms quite limited, the District Court judge rightly reasoned that Connecticut disfavors releases from tort liability generally and that this school-child context would very likely fall on the unenforceable side.
Second, Hotchkiss argued that parents who send their children on such trips, and children who go on such trips, can be expected to be aware of significant health risks and thus implicitly accept them when they choose to let their children participate. Again the District Court was right to reject this argument: Connecticut legislation has abolished implied assumption of risk as a complete defense.
Given that Connecticut has a strong common-law basis for rejecting liability releases in school cases and has legislatively abolished implied assumption of risk, one might have supposed that there was no space left in Munn for an assumption of risk argument. However, Hotchkiss’s lawyers found a basis in judicial decisions for framing such an argument as a no-duty argument to be decided by the courts as a matter of law.
Emblematic of these decisions is a California Supreme Court case: Knight v. Jewett, 834 P.2d 696 (1992). In Knight, the adult plaintiff was injured by the adult defendant during a touch football game. The plaintiff argued that the defendant was negligent and had caused her injury, while the defendant argued that the plaintiff, in joining the informal touch-football game, had implicitly assumed the risk of being injured.
The Court accepted the defense argument, distinguishing the form of implied assumption of risk that applies to adult recreational activities from the form of implied assumption of risk that is essentially congruent with comparative fault. The latter—labeled “secondary assumption of risk”—is simply contributory negligence of a special sort (namely, contributory negligence in which the plaintiff is aware of the risk associated with the defendant’s careless conduct.) The former, which the California Supreme Court labels “primary assumption of risk,” spares the defendant from liability based on a judgment that nothing it did can count as a breach of duty. In other words, according to Knight, there is, as a matter of law, no breach when the participants in an optional activity impose certain background risks on each other of which they are or should be aware (such as the risk that one participant in a game might be overzealous or dangerously clumsy and thereby cause injury to another). Several courts and tort theorists have followed Knight in reasoning that primary assumption of risk is best characterized as a no-duty argument.
By citing to Connecticut cases that seem to follow Knight’s reasoning (see, e.g., ), and by categorizing Munn as a case about recreational activities (hiking), Hotchkiss’s lawyers made it seem as if the case presents a serious no-duty/primary assumption of risk issue under Connecticut law. Here, again, however, the argument harnesses the problematic, blunderbuss notion of ‘duty as policy’ to paper over distinctions that the law deems critical.
Knight involved friends choosing to partake of an activity that already carries a heightened risk of physical harm even when nobody is careless, and that exposed each of them to certain fairly obvious risks of carelessly caused injury. Moreover, the recognition of negligence liability for this sort of activity threatens to formalize, and thereby undermine, a mode of social interaction that is valued in large part for its informality. To ignore these obvious and crucial differences between pick-up football games and school-student interactions would be to return to the dark days when courts were prepared to find assumptions of risks everywhere, i.e., merely on the basis of the plaintiff’s participation in an activity with appreciable risks. Indeed, it was just this sort of thinking that often led nineteenth-century courts to deem workers to have assumed the risk of dangerous workplaces merely because they ‘chose’ to show up to work. Connecticut, like other states, long ago walked away from that regressive idea by adopting workers’ compensation laws. And like virtually every American jurisdiction, Connecticut has followed a different strand of California Supreme Court jurisprudence (stemming from the Tunkl decision) in deeming contractual liability waivers to be largely unenforceable on the ground that firms and other entities should not be entitled to ‘deregulate’ themselves.
In short, there is no question about where Connecticut law stands on the question of whether mere participation in a risky activity, with some awareness of the risk, is sufficient to render the imposition of that risk reasonable as a matter of law. It is not. In Munn, assumption of risk is no more a basis for a no-duty argument than is unforeseeability.
As we noted at the outset, Munn poses some tricky questions, including the damages question certified by the Second Circuit. What is not tricky about Munn is the duty issue. A school owes a duty to its minor student to take care to ensure that the student is not injured in the course of a school-related activity, regardless of whether that activity takes place on school grounds or halfway around the world.
Munn caught our attention because it so vividly illustrates what for us and others has been a long-standing concern about the Realist deconstruction of duty in negligence law. The concern is not merely that today’s courts will be use the flexibility of duty-as-pure-policy to make easy cases difficult, or to provide a means of backdoor tort reform, although both of these are indeed troubling aspects of Munn. The worry is that we risk losing negligence law as a form of law if even a smart and sympathetic panel of the Second Circuit can be lured into seeing a difficult duty issue where none exists.