Q: Last month, a jury awarded $41.7 million to a woman who sued her Connecticut boarding school after she suffered permanent injuries from a tick bite on a school trip to China in 2007. How did the jury arrive at this figure? What did the school allegedly do wrong? What are the lessons of the case for nonprofits in travel, tour operators and agencies?
A: The verdict, which you can read about by Googling "Hotchkiss School," covered $350,000 for the woman's past medical care, $100,000 for the medical evacuation flight from China, $9.8 million for future lost earnings and future costs of care and $31.5 million for mental and emotional suffering and loss of life's enjoyment. There is no way to know how the jury came up with the last amount, which may be reduced on appeal.
The jury found that the school acted negligently in: (1) failing to warn about the risk of insect-borne illness on the trip, and (2) failing to ensure that the student used protective measures against insect-borne disease. The school had unsuccessfully (but reasonably) argued that it could not have known about the risk of tick disease in rural China and that, in any case, it had referred trip participants to a Centers for Disease Control website about health risks of travel, although the actual link was for South America.
The trip was "organized and supervised by members of the Hotchkiss faculty," according to the complaint. No tour operator or travel agency got sued, so it is safe to assume that none was involved, as they certainly would have been sued if they had been.
Although the verdict involved a school-operated trip, the outcome might well have been the same if the trip had been organized and operated solely by a tour operator or agency. Indeed, operators and agencies are probably more likely to get sued, as lawyers see them as travel experts with more responsibility to warn about hazards.
For nonprofits, tour operators and travel agencies, the main lesson is that you must get all trip participants to agree to a disclaimer stating that you have no special knowledge of health hazards and that the participant is responsible for verifying all health conditions at the destinations. You can find sample disclaimers at www.pestronk.com/free.html, although you will need to tailor them to the challenges presented by particular trips.
The school did require signed trip agreements, but the disclaimer excluded injuries caused by the school's negligence, which is an exclusion that you should never use.
The court precedents imply that it is not necessary to get prospective participants to sign the disclaimer, as long as you provide notice of the existence of the disclaimer before the participant pays a deposit. However, for school trips, where you have unsophisticated travelers, my advice is to have participants sign your disclaimer.
If you sell online, participants should click "I Agree" or the like before their signup is final. Such a recorded indication of agreement is legally equivalent to a signature.
If a trip participant is not yet 18 when you require the signed disclaimer or the "I Agree" click, you must get the parents to agree. If the student turns 18 before the trip starts, try to have the student sign, too.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].