Legal Ruling Helps Identify Strategies for Managing Discretionary Free Time

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by Bill Frederick

When are college students responsible for their own health, safety and security while studying abroad and, under what circumstances is the school or the program responsible? This is not a simple question but a recent court case and its subsequent unsuccessful appeal should be heeded by administrators and used to inform their risk management strategies around student discretionary free time.

In 2009 Morgan Boisson, then an undergraduate student at the University of Arizona, along with 14 of 16 students spending the semester at Nanjing American University (NAU) in China, decided to travel to Everest Base Camp at 18,000 feet where Morgan subsequently died of altitude illness.

Elizabeth Boisson, Morgan’s mother, filed a civil suit against the Arizona Board of Regents, the State of Arizona and the provider, Nanjing American University (an Arizona LLC).

In a civil court case there is an underlying assumption that if you do something that causes someone harm, whether intentional or not, the harmed party is entitled to compensation from you. When educational programs are defending themselves in a civil court against a participant, the most likely charge is negligence. In order to establish negligence it needs to be shown that four conditions exist. 1. There is harm 2. There was a duty, 3. The duty was breached (not fulfilled) and, 4. Causation, i.e., the breach of the duty caused the harm.

The harm was clear in this case and no one would argue that a university or a program doesn’t owe some duty to their students or participants. However, the nature and extent of what that duty might be is very arguable. In this case it was the crux issue as questions of breach of duty and causation rest upon how the duty is defined.

The intricacies of civil law and what constitutes a duty is beyond the scope of this article. The Arizona court said that the trip was not an off campus school activity for which defendants owed Morgan a duty.  And, in that determination the court articulated some questions derived from Arizona case law that might be useful for all higher education study abroad programs to consider. While law varies from state to state, these questions may help to guide some decision making regarding how to structure program time versus discretionary free time:

  • What was the purpose of the activity (how related to program goals was it?)?
  • Was the activity part of the course curriculum?
  • Did the school have supervisory authority and responsibility during the activity?
  • Were the risks students were exposed to during the activity independent of school involvement?
  • Was the activity voluntary or required by the school?
  • Was a school employee present at or did any participate in the activity or was there an expectation that a school employee would do so?
  • Did the activity involve a dangerous project initiated at school but built off campus?

These questions suggest a strategic approach for reducing liability exposure.

Presumably, a program activity that is managed by the program will have the benefit of the institution’s health, safety and security strategies. There are other activities that students may engage in between the time they depart for the program and the time that they return from the program that are not managed by the program and for which program safety strategies are not operational. Some of these times are clearly the participants’ discretionary free time. However, should the program staff make recommendations for what to do during such periods, or provide support for those times, or should staff accompany participants during those activities, the status of those periods as being non-program time may become less clear. Programs clearly have responsibility for what happens during program time and they have maximal control over what happens during program time. The worst scenario from a liability perspective is when the program has allowed the boundaries to be so unclear that they have maximal responsibility for an activity, but minimal control over the activity.

In fact, in Boisson v. Arizona Board et al, a number of events were argued as demonstrating that the trip was in fact a school activity. In one instance a school employee had assisted the students in making their flight reservations. In another, some professors had adjusted their class calendars in order to accommodate the students’ travel. Those events were not enough to tilt the ruling in the other direction but it would be easy to see how just a few different factors might have made a difference. What if all the students had chosen to go? What if any staff member no matter how junior had accompanied the trip? What if a professor had provided assistance or advice or had made recommendations for lodging or transportation? It is also not difficult to imagine a student telling their parents that it is a school-sponsored event in order to secure their permission or their financial support for it. None of these by themselves is damning but each makes the status of the trip increasingly gray.

Strategically, it makes sense to reduce the gray area to the degree that is practical.

Most programs cannot entirely eliminate gray areas. A program that has transported its students to a particular locale for program purposes can’t simply declare their evening out to be non-program time and expect to be absolved of all responsibility and reliably free of liability exposure. But programs can find opportunities to build firewalls between program time and discretionary free time.

  • Be crystal clear about when and where programs start and end.
  • Be clear about when and where mid program breaks begin and end.
  • Don’t allow your program to become over-involved in students’ planning their break time or post program time and avoid having your staff participating in break time or post program times with students.

And, while we need to attend to liability issues, safety is the primary concern. It would be a particularly bad idea to withhold advice or information from your students when they are making personal plans owing to concerns about increasing liability, when you know that you might be increasing their risk by doing so. From a liability perspective the best strategy is to reduce the likelihood of harm to your students. No harm means no liability. Secondarily, it makes sense to build firewalls between program time and non-program time.