The $41.7 million jury verdict last week against The Hotchkiss School in Lakeville, Connecticut sent shock waves through the independent school community. A 15-year-old Hotchkiss student suffered insect bites on a school-supervised trip to China during the summer of 2007, bites that led to tick-borne encephalitis. The girl's attorneys argued that Hotchkiss was negligent in allowing its students to walk through an area known for tick-borne encephalitis and other insect-transmitted illnesses without taking proper safety precautions. Hotchkiss, which plans to appeal the verdict, argued that such infections are rare and not reasonably foreseeable or preventable. Regardless of the outcome on appeal, all schools are well advised to review their student travel policies and procedures.
Some important points to consider:
Awareness and Precautions
The first step is to learn about the risks of each school-sponsored trip and take advantage of the many resources that are available. For example, the U.S. State Department and Centers for Disease Control provide helpful information about travel abroad. Once risks have been identified, travel plans should include affirmative precautions to minimize them. To lessen the risk of insect-borne illness, for example, the visited area in question in the Hotchkiss case might have been avoided or students might have been required to wear long pants, long-sleeved shirts and insect repellant. Depending on the area visited, periodic updates about the risks may be advisable. Information about travel risks should be shared with students, parents and chaperones so that they too can take reasonable precautions.
Partnering with competent and experienced local companies or guides is crucial to safe and successful travel programs. Schools should conduct comprehensive background checks on their local affiliates and carefully review contract terms, especially provisions that address limitations on liability, insurance coverage and emergency protocols.
A well-crafted release can protect schools and their faculty and staff. While claims for intentional harm, recklessness or gross negligence generally cannot be released prospectively, claims for negligence often can. Schools in Massachusetts should take advantage of the Supreme Judicial Court's decision in Sharon v. City of Newton, which recognized prospective releases for voluntary school activities. To maximize the protection afforded by a release under Massachusetts law, the standard terms should be vetted by legal counsel and include an acknowledgment that the trip is voluntary and that Massachusetts law shall apply exclusively. This latter provision is particularly important because several other states do not recognize prospective releases for voluntary activities. The release should be signed by both the student and the parents or guardians. If the student turns 18 after signing the release but before the planned voluntary activity, have the student sign a new release.
The governing bodies of independent schools have a fiduciary duty to take reasonable measures to protect their institutions. In that regard, all private schools should review their insurance coverage annually, including excess or umbrella coverage. Schools should ask their insurance advisors about the Hotchkiss case and the scope of coverage for school-sponsored travel in particular.
Some states provide statutory protection to nonprofit schools, trustees and volunteers. In Massachusetts, for example, damages against charitable institutions are capped at $20,000 under General Laws, chapter 231, §85K. Trustees and other volunteers are granted immunity from negligence claims pursuant to General Laws, chapter 231, §85W and the federal Volunteer Protection Act, 42 U.S.C. §14501, et seq. School employees, by contrast, do not share the benefits of statutory immunity and, consequently, should be named insureds under the school's insurance policies.
Four Steps Your Institution Can Take
No travel program is risk-free, but by taking reasonable precautions schools can minimize risks and help protect their students from harm and themselves from liability. Here are four steps your school can follow:
- Identify risks and share the risks with parents and students.
- Partner with competent and experienced local companies.
- Have releases vetted by legal counsel.
- Consult with the school's insurance advisors about the Hotchkiss case and the scope of coverage for school-sponsored travel.