Summer Abroad: Who’s Liable for Student Accident Expenses?

annbailey
May 23, 2013

Many U.S. schools offer students the chance to study abroad for a semester. Attending school in a foreign country provides cultural enrichment and plenty of social opportunities, but it can also be dangerous. Crime, theft, illness, accidental injury, and even issues with one’s visa are just a few possibilities when in a foreign country.

If a student is physically injured overseas, he or she may even be unable to continue with his or her studies. Even seeking immediate medical attention may be difficult if the injured person is not fluent in the local language or if the person does not know the local emergency number. As a result, many programs that allow students to study abroad offer a variety of amenities, including housing and travel assistance.

Certain types of travel insurance policies are useful for mitigating costs abroad for a student, and can let them avoid expensive litigation against other parties. Research of comparison databanks of policy premiums and coverages, at online sites such as Monkey.co.uk, may help protect a student from the financial effects of an accidental injury, and allow them to concentrate instead on getting the most of the education experience they traveled to find.

Tort Claims and Overseas Injuries

Courts will undergo a rigorous analysis that is well beyond the scope of this article to determine which court should have jurisdiction over a case arising out of a foreign injury. The nature of the accident will determine the potential defendants and the nature of the defendant can significantly impact that analysis. Injured Americans cannot guarantee that a court will agree to hear their case or even apply the same rules.

If an American suffers an injury as a result of another party’s tortious act that was committed while overseas, he or she may be forced to sue in the country in which the tortious act occurred. While American jurisprudence derives largely from English common law, the American legal system bears little resemblance to courts in other countries. Every sovereign nation will have its own legal system with its own rules.

What qualifies as negligence in one nation will not qualify as it in other and lawful conduct in one country may result in significant fines in another. The rules of evidence, rules of court, and documentation requirements can combine to create a very different outcome than one would receive in the United States. If a court in the United States is unwilling to hear the case, victims should consult an attorney in the jurisdiction in which the accident occurred.

Tort Claims in the United States

If a court in the United States agrees to hear the case, the case will proceed with the standard rules of American tort law. In the absence of any deliberate conduct, the plaintiff will likely sue for negligence. Negligence involves a breach of a duty of care, which causes an injury.

Where the injury occurs is not as important as what caused the specific injury. If an injury occurs at an academic institution, the plaintiff may sue because the defendant institution was negligent in providing adequate security or lighting. If an injury occurs while traveling, plaintiffs may claim that the defendant carrier was negligent in failing to train or supervise its drivers, ferry operators or pilots.

While rare, claims arising out of terrorism are particularly problematic. Courts only award damages in negligence cases if the harm was reasonably foreseeable, and terrorism, by nature, is generally unforeseeable. However, if an injury occurs as a result of a terrorist act, the institution’s guide may have negligently ignored warnings of the attack while the property owner may have been negligent in securing the premises.

Liability Waivers and the Assumption of Risk

As a practical matter, no university in the United States would think of sending a student abroad without having the student sign a liability waiver. A liability waiver is a document that provides that the signatory understands the risks of a particular activity. Liability waivers are important due to the fact that an assumption of risk is a strong defense against tort claims; if one assumed the risk of an injury, the defendant’s duty is reduced to a duty to not intentionally or recklessly injure the plaintiff. Plaintiffs may no longer recover damages for negligence.

Liability waivers providing that the injured party assumed the risk of the injury may be effective against civil claims in the United States depending upon the language. For the signatory to assume the risk knowingly and voluntarily, the signatory must understand the specific risk and agree to sign the document without duress. If the student does not understand the risk, then the student cannot assume the risk.

Studying abroad carries many risks. Many waivers for students studying in another country attempt to include all of these potential sources of harm and advise students to read travel warnings from the U.S. State Department. Even if the waiver does not discuss a particular source of risk, the student may be forced to bear the burden of the loss; if a reasonable person would have noticed the hazard and if the student proceeded anyway, he or she may have implicitly assumed the risk.

Such an assumption of risk depends upon the nature of the harm, the victim’s understanding at the time he or she signed the waiver, and the exact language of the waiver. There is often enough ambiguity in a waiver regarding an activity with many hidden dangers, like studying overseas, to result in litigation. Often, the institution is sued, the student may receive no recovery after an accident, and both parties incur substantial legal expenses.

However, if the victim sues in a foreign court, all bets are off; each jurisdiction will treat waivers differently. Fortunately, insurance allows both parties to avoid these difficult issues. Without adequate insurance, students can be left with physical injuries or property damage for which they have little hope of recovery.

A former student of school abroad, Ann Bailey encourages anyone planning to study abroad to search online at Monkey.co.uk for a policy to insure against property losses and personal injury. Thus, in the event of an injury, they can receive prompt compensation and remain focused on their academic and social growth.