Munn et al v. Hotchkiss School
ORDER granting in part and denying in part 143 Motion in Limine for the reasons set forth on the record, except with respect to section VI. For a ruling on that portion of the motion, see the attached decision. Signed by Judge Stefan R. Underhill on 3/22/13. (Munoz, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Cara Munn, et al.,
No. 3:09cv919 (SRU)
RULING ON MOTION IN LIMINE TO PRECLUDE INTRODUCTION OF A
WAIVER AND RELEASE OF LIABILITY
The primary plaintiff in this case, Cara Munn, was a fifteen year-old student on a school
trip abroad when she was infected with an insect-borne disease. The disease left her permanently
disabled. She, along with her parents, has sued the trip‘s sponsor, the Hotchkiss School, for
damages that resulted from the school‘s alleged negligence. Plaintiffs now move to preclude
introduction of a release signed by Cara and her mother prior to the trip. Plaintiffs have filed a
motion in limine to preclude introduction of the release, arguing that it does not apply in this
case. For the reasons set forth below, plaintiffs‘ motion in limine is GRANTED.
In the spring of 2007, Cara Munn signed-up for a six-week summer enrichment program
to be held principally in Tianjin, China. The trip was organized by Cara‘s boarding school, the
Hotchkiss School. Three months prior to her departure, the school sent Cara and her parents a
four-page ―Agreement, Waiver, and Release of Liability.‖ Doc. # 143, Ex. C. The waiver
described the rules governing the trip, the grounds upon which the school could send a student
home, and the risks attendant to foreign travel.
Towards the end, the document also set forth a ―Release of Claims.‖ This section first
laid out the broad, general scope of the release in four bullet-pointed clauses. Cara and her
parents would release the school from:
(1) ―any and all claims that may arise from any cause whatsoever, whether resulting from
acts or omissions of any persons, from the operation or condition of the facilities or
premises, from acts of war or terrorism, or from acts of God or nature, or risks
associated with the consumption of alcoholic beverages, use of illegal drugs in any
form and injury or death from causes such as traffic accidents, crime, assault and
(2) ―responsibility for any accident, illness, injury, or any other damage or consequence
arising or resulting directly or indirectly from the Student‘s participation in the
(3) ―any liability, damage, or injury that may be caused by Student‘s negligence or
willful acts committed prior to, during or after participation in the Program,‖ and
(4) ―any liability, damage, or injury caused by the intentional or negligent acts or
omissions of any other participant in the Program, or caused by any other person.‖
Id. This broad definition was subject to one exception; the release waived the school‘s liability
―except to the extent that the liability, damage, injury, loss, accident or illness is caused by the
sole negligence or willful misconduct of the School, its officers, trustees, faculty, employees,
agents, or representatives.‖ Id. Cara and her mother signed the document on March 7, 2007.
The school conditioned students‘ participation in the Hotchkiss-in-China program on students
and parents signing this release of claims.
Cara fell ill four weeks into her time in China. Doctors eventually diagnosed her with
tick-borne encephalitis, a virus transmitted by an insect bite that causes swelling in the brain. As
a result of her infection, Cara permanently lost her ability to speak, control her drooling, many of
her fine motor skills, and some of her cognitive capacity. Cara and her parents allege that Cara‘s
illness resulted from Hotchkiss‘s negligent planning and supervision of the China trip.
Specifically, plaintiffs claim that the school failed to adequately warn students of the risk of
insect-borne disease, and failed to ensure that students take adequate precautions against insectborne disease before and during the trip.
A. Unambiguous Waiver
As a general rule, Connecticut courts disfavor broad waivers of negligence liability.
―Unless the intention of the parties is expressed in unmistakable language, an exculpatory clause
will not be deemed to insulate a party from liability for his own negligent acts,‖ the Connecticut
Supreme Court has explained. Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 322
(2005). A party cannot shed his ordinary responsibility ―in the absence of language that
expressly provides so.‖ Hyson v. White Water Mountain Resorts of Conn., 265 Conn. 636, 643
(2003). When evaluating a release or waiver, ―[t]he question is whether an ordinary person of
reasonable intelligence would understand that, by signing the agreement, he or she was releasing
the defendants from liability for their future negligence.‖ Hanks, 276 Conn. at 324-25. Though
the Connecticut Supreme Court has never gone so far as to insist that a waiver use magic words,
in general a waiver should refer to ―negligence,‖ or some close synonym, in order to clearly
communicate its message. That is why the Court held an exculpatory clause that ―explicitly used
the word ‗negligence‘ several times‖ to be sufficiently clear, while it refused to enforce a release
that ―only referred to risks involved in [an activity], but which made no reference to the possible
negligence of the defendant.‖ Lewis v. Habitat for Humanity of Greater New Haven, 2012 WL
386391 at *4 (Conn. Sup. Ct. 2012) (comparing Hanks, 276 Conn. 314, to Hyson, 265 Conn.
In this case, an average person would not have understood the release to absolve
Hotchkiss of liability for its careless acts. The portion of the waiver that lays out the release‘s
general scope never references Hotchkiss‘s basic responsibility to use reasonable precautions,
and the exception to the waiver appears to carve out negligent or willful conduct by the school
from the scope of the waiver.
The general scope is, of course, written quite broadly; it covers ―any and all claims‖ and
―acts or omissions of any persons,‖ and waives ―responsibility for‖ not just ―any accident,
illness, injury,‖ but also ―any other damage.‖ But that broad language uses common words to
describe breach (―an act or omission‖) and harm (―accident, illness, injury‖), and never refers to
a standard of care (by using a word like ―negligence‖). An ordinary person might interpret the
release to shield Hotchkiss from most litigation, but would not know that Hotchkiss intended to
eschew the most basic duty each of has to others—the duty to act with reasonable care, or, when
referred to in the negative, not being negligent. This ambiguity is underscored by the clarity with
which the release refers to the standard of care taken by others: it waives ―any liability, damage,
or injury that may be caused by Student’s negligence‖ and ―any liability, damage, or injury
caused by the intentional or negligent acts or omissions of any other participant in the Program.‖
(emphasis added). Thus, the release speaks with clarity about the ―negligence‖ of everyone but
the Hotchkiss School. Indeed, the natural reading of the waiver does not suggest that students are
waiving the chance to proceed against the school in the event that Hotchkiss acts carelessly. Just
the opposite – in the long, bullet-pointed list of things that could go wrong, it never once
mentions that the school itself might be the one to make a mistake.
Even if the broad description of the waiver insulated the school from negligence liability,
the exception to the waiver told the average reader that the waiver did not cover its negligence.
The release states that the school will still be liable for any harm or damage ―caused by the sole
negligence . . . of the School, its officers, trustees, faculty, employees, agents, or
representatives.‖ ―Sole negligence‖ is a term of art, one that contrasts with ―comparative fault,‖ a
legal concept that only ascribes liability to an actor for that portion of an accident that she can
fairly be said to have caused. By using ―sole negligence,‖ the school may have intended to only
remain liable when a jury found it one hundred percent responsible for an injury, a situation so
rare that states have largely abandoned it as a threshold for assessing fault. But the school‘s
intent does not matter. What matters is whether lay people, in this case a fifteen year-old student
and her parents who lack legal training, would have understood that by only holding the school
responsible for its ―sole negligence,‖ they were in effect waiving the school for any
responsibility for its comparative fault. The answer can only be no. An average person would
have reasonably believed that the school meant to remain responsible solely for any harm that its
Because the portion of the release that delineates its basic scope does not appear to waive
the school‘s liability for its negligence, and because, in any event, the language that describes the
release‘s exception appears to expressly limit the waiver with respect to the school‘s liability for
negligence, the release is not enforceable in this case.
B. Public Policy and Waivers of Negligence Liability
Even if the release contained an unambiguous waiver of negligence liability, it would still
be void as a matter of public policy. The Connecticut Supreme Court has held that even a ―well
drafted exculpatory agreement . . . that releases [an entity] from prospective liability for personal
injuries sustained as a result of [an entity‘s] negligence may violate public policy if certain
conditions are met.‖ Reardon v. Windswept Farm, 280 Conn. 153, 159 (2006). The Court first
enunciated these criteria in Hanks v. Powder Ridge Restaurant Corp., a case involving an
accident on a dangerous slope used for snowtubing. There, the Hanks Court adopted the
California Supreme Court‘s six-factor test for assessing when a release offends the public
interest, and held that a snowtube operator could not force a customer to release it of all
negligence liability. 276 Conn. at 328 (borrowing standard enunciated in Tunkl v. Regents of the
University of California, 60 Cal. 2d 92 (1963)). The Hanks Court reasoned that it could not
enforce an exculpatory agreement when (1) it concerns a business suitable for regulation, (2) that
business is performing a service of great public interest, (3) the business offers its services to the
general public, (4) the party seeking exculpation has a decisive bargaining advantage, (5) the
release is tantamount to a contract of adhesion, and (6) the release places purchaser under control
of seller, and subject to the risk of the seller‘s carelessness. Id. at 328. The Hanks Court
cautioned that no factor is dispositive, and that each case depends upon ―the totality of the
circumstances of any given case against the backdrop of current societal expectations.‖ Id. at
Here, the school‘s relationship to the public interest mirrors the snowtube operator‘s
position in Hanks in most respects: Just as the snowtube operator had to comply with public
safety codes, Hotchkiss School must meet certain educational standards set by legislatures and
agencies. Just as the snowtube operator provided a public space for families to enjoy time
together, Hotchkiss ensures that children can learn to navigate the public world and prepares
them for life outside their parents‘ care. Just as the snowtube operator allowed any member of
the public to slide down its slopes, Hotchkiss let students from other schools join its excursion to
China. And just as the snowtube operator set the terms of the release, Hotchkiss drafted its
release and did not invite or permit negotiation. See Def. Trial Ex. 616 (email informing students
that they will not be allowed to enroll in the China program unless they and their parents signed
The final two Hanks factors—whether release is tantamount to a contract of adhesion,
and whether an entity controls the purchaser— present closer questions. In Hanks, patrons were
presented with the release after they had already traveled to the slopes. Once there, patrons had
little choice but to sign or cancel their already in-progress plans. In this case, there is no similar
element of surprise; Hotchkiss presented students with the release months before they left for
China. But like the patrons in Hanks, Cara and her parents had no meaningful exit option. If Cara
wanted to go to China with Hotchkiss and enjoy all the advantages of such a trip—a journey in
which she could form new friendships with her classmates, and establish long-term relationships
with Hotchkiss faculty— she had to sign a release that the school argues waived her right to sue
it for its failure to take basic precautions to protect her. Thus, the release was still a ―take it or
leave it‖ proposition, not ―subject to the normal bargaining process,‖ and one in which Hotchkiss
enjoyed a ―decisive bargaining advantage.‖ Hanks, 276 Conn. at 333.
As for the school‘s control over risks, here too it enjoyed much of the same advantages as
the snowtube operator in Hanks. Hanks and its progeny concerned recreational facilities with
hazards lurking on the proprietors‘ properties. For example, in Hanks the snowtube operators
oversaw maintenance to the facility‘s lifts and runs, and they ―alone [could] properly maintain
and inspect their premises, and train their employees in risk management.‖ 276 Conn. at 331-32.
And in Reardon v. Windswept Farms, 280 Conn. 153, the Court reasoned that a horse trainer had
total control over the risks at its stables; the trainer assigned riders horses with appropriate
temperaments, maintained safe corrals, and hired qualified instructors. Id. at 162. In contrast,
Hotchkiss had no physical control over the environment that posed a risk to Cara; put bluntly,
Hotchkiss could not change anything about China, the world‘s third largest country, home to the
world‘s largest population.
But Hotchkiss still controlled Cara‘s exposure to the risks that China posed. Hotchkiss set
the trip‘s itinerary. Because it is a boarding school, it largely controlled Cara‘s access to medical
professionals and travel medicine information. See Plain. Trial Ex. 2 (email from trip leader
stating that ―Hotchkiss infirmary can serve as a travel clinic, and administer many
vaccinations.‖). Once in China, Cara was under the control of her trip leader. At trial, the trip
leader, Chinese teacher Jean Yu, testified that she was a native of the Tianjin region, and that she
had extensive knowledge of, and experience traveling to, the places the students visited. She
also testified that students were not permitted to venture out into the city without permission and
a purpose. Thus unlike Jean Yu, Cara could not run to a store to buy bug repellant on her own,
and could not predict the nature of the topography and nature of the places she would encounter.
Just as the snowtube operator in Hanks had total control over the means to protect riders from
harsh conditions on its runs, and just as the horse trainer in Reardon had the sole ability to ensure
that a child remained safe during her horseback riding lesson, Hotchkiss school‘s employees
were in the exclusive position to evaluate the risks Cara encountered on her trip and to ensure
that Cara had the resources to protect herself against those risks. Accord Lewis, 2012 WL 386391
(voiding Habitat for Humanity release of liability for student‘s cross-country bike trip).
Because this case falls logically in line with Hanks and similar cases, I hold that, under
the totality of the circumstances presented by the facts in this case, Hotchkiss‘ release of liability
is void as a matter of public policy.
For the reasons set forth, I hold that this release is unenforceable as a matter of law. Thus,
plaintiffs‘ motion to exclude the release as evidence in this trial is granted.
It is so ordered.
Dated at Bridgeport, Connecticut, this 22nd day of March 2013.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge
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