Thursday, January 21, 2016

Majority of First Department Panel Finds That Study-Abroad Organizer Owed Duty to Care For Program Participant

In Katz v. United Synagogue of Conservative Judaism, the plaintiff was a participant in a study-abroad program in Israel operated by United Synagogue.  During her first semester abroad she allegedly injured her knee for which she was treated by a doctor.  During the second semester she performed volunteer work where she stayed with a host family.  Plaintiff's relatives lived an hour and a half away in Jerusalem, and plaintiff had a cell phone to contact her parents.  She allegedly re-injured her knee for which she again received treatment at a hospital.  She was told to rest and return in two weeks if the knee remained swollen.  A week later she was accompanied by a United Synagogue staff member to an orthopedist appointment where an MRI was prescribed.  Another week later she was again accompanied to her MRI appointment and the following week returned to the orthopedist, once again accompanied by United Synagogue.  She was prescribed physical therapy but did not seek treatment because she told United Synagogue to make arrangements for her.  When they failed to do so, she complained to the program director who was not responsive.  Finally, she complained to her parents.  Upon returning to the states she underwent surgery that she claims was exacerbated by her failure to obtain physical therapy in Israel.

The majority found that United Synagogue owed a duty to the plaintiff because it was in the best position to protect her from harm -- although the majority recognized that "plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be."  The majority further found that this was not an ordinary study-abroad program because of portion of the program was not held at a university.  Lastly, the majority suggested that it was not extending the doctrine of in loco parentis, which does not apply at the college level, because the program had an internal policy of assisting with arrangements for medical care.

The dissent disagreed, finding that the majority was, in fact, applying the doctrine of in loco parentis, which has been affirmatively rejected by the Courts with respect to study-abroad programs.  The dissent noted that the plaintiff had the means to make arrangements for her medical treatment, and that any failure by defendant to do so amounted to a mere breach of contract, which would not create an independent tort duty. Finally, even assuming that defendant owed a duty to the plaintiff, the dissent would have dismissed the claim based on a lack of proximate cause. 

The majority consisted of Justices Acosta, Saxe and Moskowitz. The dissent was written by Justice Andrias, in which Justice Tom joined.  With a 3-2 split the defendant will have an automatic right of appeal to the Court of Appeals once finality has been achieved.  We will continue to monitor the case for a possible leave motion in advance of finality being obtained.          

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