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    April 2018

    Heightened Vigilance Required in Study Abroad Risk Management

    In February 2018, a federal Court of Appeals affirmed a jury’s $41.5 million verdict against the school in Munn v. Hotchkiss School. Here, a former student claimed she contracted encephalitis from a tick bite during a school-sponsored trip to China. The case’s conclusion does not change past risk management advice from United Educators (UE) relating to study abroad, but the Munn matter is an opportunity to remind schools that increased vigilance is required:

    • Consult authoritative sources to determine the material risks of any foreign trips the school sponsors. While schools should collect information from multiple sources about potential study abroad destinations, UE recommends always consulting two authoritative sources: the U.S. State Department and the Centers for Disease Control and Prevention (CDC).
      • The State Department recently introduced a new travel advisory system that ranks every country on one of four levels according to a variety of safety factors.
      • The CDC issues three levels of travel health notices for foreign travel depending on health issues that impact traveler safety, such as widespread disease outbreaks.
    • Be prepared to cancel trips if necessary. A school’s written policies should explicitly reserve the right to cancel any foreign trip it sponsors if the school determines the safety risks to be unacceptably high. If a school follows guidance in travel advisories from the State Department or health notices from the CDC when deciding whether a trip will proceed, note this practice in the policies. Even if a school does not follow the State Department or CDC guidance, UE recommends that it notify participants (and the parents of minors) during trip preparation if the following apply to any countries or areas on the trip itinerary:
      • A Level 3 (Reconsider travel) or Level 4 (Do not travel) travel advisory issued by the State Department
      • An Alert Level 2 (Practice Enhanced Precautions) or Warning Level 3 (Avoid Nonessential Travel) from the CDC
    • To reduce potential liability, consider transferring risk for programs or specific activities during a program to third-party providers. However, it may not be possible for schools to completely shield themselves from liability for programs they sponsor—regardless of how much responsibility a third party carries for day-to-day operations. UE recommends consulting counsel for legal advice. Schools may find UE’s contracting resources helpful when working with third-party vendors.
    • Always use waivers or releases for school-sponsored study abroad programs. Waivers or releases, relinquishing the right to sue, should be signed by program participants who are 18 or older and by the parents (or guardians) of participants under 18. In most states, parents can give up only their own right to sue on their child’s behalf, not the child’s right to sue, and waivers or releases signed by minors generally are not enforceable.
      • Waivers or releases for any school-sponsored trip abroad should be specific to that trip and should:
        • Provide detailed descriptions of all known risks for the trip
        • Explain that any foreign travel involves general risks
        • State that the school does not and cannot guarantee a participant’s safety
      • Schools should understand that if litigation arises from a program, courts will examine waivers or releases closely and—if supported by the facts—may hold that they are invalid or against public policy.
      • In addition to requiring parents to sign waivers or releases, schools that send minors abroad should consider having the minor participants sign assumption of risk forms. Unlike a waiver or release, these forms do not ask participants to relinquish their right to sue; rather, they spell out the trip’s risks and ask minors to affirm they understand and assume these risks voluntarily. If litigation develops, an assumption of risk form can bolster a school’s defense. A court may uphold an assumption of risk form even if it strikes down a waiver or release.
      • State laws governing the content and enforceability of waivers and releases vary, so schools should always work with local counsel to draft or review these documents to help ensure they are consistent with applicable legal requirements.
    • Before each trip, hold mandatory orientation for participants and parents of minor students. Discuss the trip’s risks, review any necessary or recommended vaccinations, and encourage questions. During the session, distribute and review in detail the waivers, releases, and/or assumption of risk forms—but do not require them to be executed on the spot. Document attendance at the meeting and allow parents and participants to take the forms home for further consideration before signing and returning them.
    • Carefully consider participant supervision. Look for ways to improve student safety through more effective, age-appropriate supervision during each school-sponsored trip abroad. For example, some trips may require more leaders or chaperones, or a re-examination of sites and activities on the itinerary.
    • Consider requiring that students traveling on school-sponsored programs purchase catastrophic and/or medical evacuation insurance. Over 20 percent of study abroad claims in a recent UE study involved a program participant’s injury or illness, reinforcing the importance of adequate planning to cover high medical expenses.


    General Study Abroad

    K-12 Study Abroad

    Higher Education Study Abroad

    Waivers and Releases

    By Hillary Pettegrew, senior risk management counsel


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