Volume 2, Number 1, Winter 2000 - Summer 2001

Looking at Health and Safety Issues from the Perspective of a Trial Attorney

by Tyrone Maho

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.– BAJI (Book of Approved Jury Instructions) 3.10

This above jury instruction applies in almost all cases of negligence in the civil courts in the State of California. This standard is also typical for lawsuits brought in the United States predicated on injury caused to students while studying abroad. How a jury applies this instruction to the particular facts of the case will determine which party prevails: the injured student or the institution he or she is suing. Typically named as defendants in such a lawsuit are the college, the program, and often the actual individuals involved in administering the program.

What evidence will be heard during a trial that will help a juror decide if the college and/or study abroad program was negligent? A jury is likely to hear from the actual parties involved with study abroad: the injured student, the student's colleagues and friends, other student participants in study abroad, the college administrators responsible for study abroad, the actual program instructors and staff members, and perhaps the student's host family. The testimony from these people sets up the factual basis for the lawsuit (i.e., the contemporaneous observations made by the involved participants: what was actually said, seen, and heard). This testimony will provide the jury an "illustration" by way of setting out a chronology of events leading up to and including the injury producing the incident. Further, the testimony from the college and study abroad staff will be of assistance when judging whether the information disseminated to the students was reasonable under the circumstances. What risks were discussed? What literature was provided to the students? Were the students encouraged to engage in their own risk assessment by contacting the State Department and/or the Centers for Disease Control and Prevention? Were the students required to get physicals, check with local physicians, and get necessary shots or immunizations?

Expert witnesses in the study abroad field (those people with special knowledge, education, or skill) will testify as to whether the particular college/program met the standard of care in the study abroad "industry." At the time of the injury-producing incident, were there any travel warnings for the area in question? What was the state of knowledge regarding diseases, crime, terrorism, or any other potential danger to the college student? Of course, before one applies one of these standards, the specific facts of this particular lawsuit begs the question: does a standard of care for study abroad even exist? The law in this area is not very settled and is presented as a real concern for all attorneys in the following California lawsuit.

In the fall of 1993, a young college student brought a personal-injury lawsuit against her own college and the Christian College Coalition (Coalition), which sponsored her overseas study program in Costa Rica. I represented the Coalition, which is based in Washington, D.C., and has a host campus in Costa Rica; another law firm handled the defense of the college. This female student contracted the skin disease leishmaniasis during her semester abroad in Costa Rica. The specific facts giving rise to the lawsuit are interesting and are summarized below.

The student, who was from a small Christian college in California, was joined by approximately 30 other students from the United States to spend a semester learning about Central America's history, geography, and culture. Each student was assigned a host family in or near the capital of San Jose, Costa Rica. The students would report daily for classroom instruction at the Coalition's headquarters in San Jose, but would often take day or overnight excursions in and around Costa Rica and visit historic and cultural sites. Some trips included travel to the neighboring countries of Guatemala, El Salvador, and Nicaragua.

As part of the students' Christian fellowship, each was obligated to spend two weeks of the semester assisting Costa Ricans through service projects. Participation in these service projects was required, but was considered by prior students as their most memorable "highlight" during their semester abroad. Previous students had helped in hospitals, orphanages, or farms. Each student could select his/her own locality, with the input of the experienced Coalition staff members and instructors. In this case, the student from California selected a Costa Rican environmental issue and chose to work with a local Bri Bri Indian tribe on an iguana preserve near the Panamanian border. She had visited the area with all of the other students just a few weeks prior to her service project during a tour of southeast Costa Rica, and she decided that she wanted to return.

During her two-week stay with the local Indians, the student contracted leishmaniasis, a terrifying and potentially disfiguring skin disease, if left untreated. According to the Centers for Disease Control and Prevention, leishmaniasis is a parasitic disease, spread by infected sand flies, that often causes skin sores or damages internal organs of the body. Over time, the disease will attack the mucosal membranes in the head, causing literal "holes" in the face - photographs show untreated sufferers with "essentially" no noses. The photographs are gruesome and would be highly prejudicial if ever placed in front of a jury.

One of the key issues that the student's attorneys focused on was the change in sleeping accommodations encountered by the injured student once she arrived at the Bri Bri Indian site. Due to an illness in one of the Bri Bri households (where prior students had lived), this student was asked to sleep in a more open environment in a household a considerable distance from the main part of the preserve. It was alleged that this increased "exposure" was the likely cause of the plaintiff contracting the disease, although the exact time of infection remained uncertain. This issue also could have been parlayed into a wedge between the college and the Coalition, as the Coalition was directly responsible for locating the service projects and for checking on the students during their time away.

After observing recognizable bites on her face and fingers, and being very unhappy with her situation, the student asked to leave the iguana preserve before the end of her two weeks. She was then seen in local hospitals in San Jose, but did not actively treat her disease until after she returned to the United States. After being seen by specialists in California, the plaintiff decided to try a newer experimental drug that, her attorneys maintained, was not a sure end to the disease. The student maintained her disposition that she lived in constant fear that the parasite was dormant in her blood, but that if it became active, she could end up like the villagers whose photos she had seen. She was also fearful of transmitting this disease to her children should she become pregnant.

What became an interesting sideplot to this lawsuit was the knowledge I obtained during my investigation and analysis of the case - that had the student been treated with the mainstream traditional treatment given to the populace in Central America, she might have been "cured" of the disease. The top skin specialists in Costa Rica advised me of their hesitation about the results of some of the treatments used by some American doctors (including the medication given to this student), and I felt the immediate need to communicate this to the student. As my discussion could only be through her lawyers, I requested that they give serious thought to using another form of treatment, which I outlined for them based upon the literature in my possession and my discussions with the physicians. If the lawyers declined to pass this information onto their client, would they potentially become parties to their own lawsuit?

The essence of the student's lawsuit can be summarized as follows: 1) both her Christian college and the Coalition failed to protect her against the dangerous condition known as leishmaniasis; and/or 2) both the college and the Coalition failed to adequately warn her of this disease.

In cases for negligence, the plaintiff has to prove an existence of a duty owed to him/her, that there was a breach of that duty, that the breach of the duty was the proximate cause of injury to the plaintiff, and that the plaintiff suffered actual damages (e.g., medical costs, emotional damage, pain and suffering, etc.). In our case, it was not disputed that the college and the Coalition owed the student a duty to look out for her best interest while she was in their general care and custody. And it was not questioned that the plaintiff contracted this skin disease from being bitten at the Indian preserve: the symptoms surfaced in a timely manner described in the medical literature. The real issue was whether the defendants breached their duty to the plaintiff. That is, whether the program/college knew or should have known of the leishmaniasis danger at the time they had placed her at the Bri Bri Indian site, whether they failed to protect her if they had (or should have had) this knowledge, and/or whether they should have warned her of the possibility of contracting this skin disease?

The experts, who were retained to discuss the "standard of care" and whether the defendants breached the standard, disagreed. After carefully researching in this area and contacting numerous programs and colleges over the internet, the Coalition's expert witness learned that leishmaniasis was not a discussed risk at the time of the plaintiff's semester abroad, and that programs and colleges were not warning of its risk in Costa Rica or anywhere in Central America. This situation later changed in the following years - perhaps due to publicity about our case - but the applicable standard relevant to this specific lawsuit was whether or not these risks were being warned of at the time the student studied abroad.

Through the discovery process (the time between the filing of the lawsuit and the actual commencement of trial), it was also learned that the staff members or program leaders for study abroad at both the college and coalition levels were not aware of this skin disease, and there had never been a problem with prior students in the region of the Bri Bri's. This evidence was directly relevant.

Issues relating to the provisions given to the student before travel to the iguana preserve were still in dispute: What kinds of mosquito nets were provided, and were the holes small enough to keep sand flies out? What type of insect repellant was provided, and was it adequate to ward off sand flies? This, of course, depended upon its application - something only the injured student would have personal knowledge of.

In the end, after the deposition of the student's expert who testified that the college and the program fell below the standard of care, this lawsuit was settled just two weeks before trial. While the terms of the settlement cannot be revealed due to the agreement's confidentiality provisions, it is sufficient to point out that both sides took into account the risks of being one of the first to set the law in this very gray area. It was decided, as many lawsuits are, that consideration of a known economic cost is more satisfactory to all parties than the chance of a surprise jury verdict for anyone.

One must always consider how a judge or 12 jurors, taken from a cross-section of the community, will ultimately judge "reasonableness." The same set of facts, with the same expert review on the standard of care, may yield completely different results depending upon the 12 jurors selected and/or the jurisdiction one is in (e.g., state court v. federal court, California v. Arkansas). This becomes even more complicated if the litigation takes place abroad. Parameters surrounding this area of the law will be developed as cases are tried, expert testimony given, and appellate court decisions become binding precedent. In the interim, it is suggested that all advisors in the study abroad field become as familiar as possible with the risks associated with participation in their programs and warn of those risks, even if the reality of their occurrence is negligible. It is also highly recommended that advisors and study abroad program sponsors examine the 14 guidelines developed by the Interorganizational Task Force on Safety and Responsibility in Study Abroad (accessible at http://www.oldsite.nafsa.org/safetyabroad/guidelines1298.html). To the extent that these guidelines may establish a new "standard," by which subsequent liability may be adjudged, it is recommended that study abroad programs consider and implement, to the extent possible, all such recommendations. Program sponsors should keep in mind that they will likely be confronted by these guidelines in a lawsuit for negligence on behalf of the injured participant and will be asked to show what steps they have undertaken to comply with those guidelines.

All advisors will be held to what others in their field are doing; therefore, in addition to adherence to the "standard of care" established by the Interorganizational Task Force, communication is key: internet bulletin boards, attendance at seminars, and constant checking of the medical and other literature provided by the US Centers for Disease Control and Prevention, the US State Department, and local experts, for the health and safety of students are a must. It is better to testify in court that one's program is setting the standard for the field, not just following it.

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Tyrone Maho received his B.A. with honors in 1985 and his M.A. in 1986 from the University of California at Davis. He received his J.D. from the University of California at Davis School of Law in 1989 and is currently a member of the American Board of Trial Advocates (Associate level), the Santa Barbara County Bar Association (for which he served as Director from 1993-94), and the Santa Barbara Barristers. He was admitted to the State Bar of California (1989), the United States District Court, Central District (1990) and Eastern District (1990). He is currently an attorney for the Santa Barbara, California, law firm of Snyder, Strozier, Maho, and Tomlinson, and his practice emphases include litigation, particularly commercial and personal injury matters, and sports law.