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by Butzow v. Wausau
Memorial Hospital, 51 Wis. 2d 281, 187 N.W.2d 349, 353-54 (Wis. 1971);
Morgan v. Veterans of Foreign Wars, 206 Ill. App. 3d 569, 565 N.E.2d
73, 77, 151 Ill. Dec. 802 (Ill. App. 1990); Restatement (Second) of
Agency § 225 (1958). In Morgan, as in this case, the defendant was a
charity.
There

is also no argument that the contract
between ASSE and Kristin's parents is the exclusive source of ASSE's
legal duties to Kristin. Negligence in the

erformance of a cor ract
that foreseeably results in personal injury, including as here
emotional distress, is actionable-under tort

aw. See, e.g., Kuehn v.
Childrens Hospital,f 119 F.

d 1296 (7th Cir. 1997). As we pointed out in
Rardin v. T & D Machine Handling, Inc., 890 F.2d 24, 29 (7th Cir.
1989), "tort law is a field largely shaped by the special
considerations involved in personal-injury cases, as contract law is
not. Tort doctrines are, therefore, prima facie more suitable for the
governance of such cases than contract doctrines are" even when victim
and injurer are linked by contract. See also Fireman's Fund American
Ins. Cos. v. Burns Electronic Security Services, Inc., 93 Ill. App. 3d
298, 417 N.E.2d 131, 134, 48 Ill. Dec. 729 (Ill. App. 1980).
As
the sponsor of a foreign exchange student, ASSE was subject to
regulations of the United States Information Agency that require
sponsors to train their agents, "monitor the progress and welfare of
the exchange visit," and require a "regular schedule of personal
contact with the student and host family." 22 C.F.R. §§ 514.10(e)(2),
514.25 (d)(1), (4) (now §§ 62.10(e)(2), 62.25(d)(1), (4)). These
regulations are intended for the protection of the visitor, see
"Exchange Visitor Program," 58 Fed. Reg. 15,180, 15,190 (1993)
(statement of USIA accompanying promulgation of 26 C.F.R. § 514.25),
and the jury was therefore properly instructed, under standard tort
principles not challenged by ASSE, that it could consider the violation
of them as evidence of negligence. There is no argument that the
regulations create a private federal right of suit that would allow the
plaintiffs to sue ASSE under the federal-question jurisdiction of the
federal courts (and we have found no case suggesting there is such a
right), or that Wisconsin is legally obligated to use the regulations
to define the duty of care of a sponsor sued under state tort law. (In
other words, there is no argument that the federal regulations have
preemptive force in state tort litigation.) But the district court was
entitled to conclude that a state court would look to the regulations
for evidence of the sponsor's duty of care. Courts in tort cases
commonly take their cues from statutes or regulations intended to
protect the safety of the class to which the tort plaintiff belongs.
See, e.g., Bennett v. Larsen Co., 118 Wis. 2d 681, 348 N.W.2d 540,
548-49 (Wis. 1984).
ASSE is also a member of a private
association of sponsors of foreign exchange students, the Council on
Standards for International Educational Travel, which requires members
to "maintain thorough, accurate, and continual communication with host
families and school authorities." A jury could reasonably consider the
Council's statement as additional evidence of the standard of care
applicable to sponsors and it could also accept the plaintiff's
argument that due care required Breber to try to develop rapport with
Kristin so that Kristin would trust and confide in her and so that
Breber could pick up any signals of something amiss that Kristin might
be embarrassed to mention unless pressed.
Kristin Beul
arrived in Wisconsin from Germany on September 7, 1995, and was met at
the airport by Richard Bruce and his daughter. Marianne Breber did not
go to the airport to meet Kristin. In fact, apart from a brief
orientation meeting at a shopping mall in September with Kristin and
one other foreign exchange student, at which Breber gave Kristin her
phone number, she didn't meet with Kristin until 446
January 21 of the following year--under unusual circumstances, as we'll
see. She did call the Bruce home a few times during this period and
spoke briefly with Kristin once or twice, but she made no effort to
make sure that Kristin was alone when they spoke. She would ask in
these calls how Kristin was doing and Kristin would reply that
everything was fine. Breber did not talk to Mrs. Bruce, who would have
told her that she was concerned that her husband seemed to be
developing an inappropriate relationship with Kristin.
Kristin
had led a sheltered life in Germany. She had had no sexual experiences
at all and in fact had had only two dates in her lifetime. On November
17, 1995, Richard Bruce, who weighed almost 300 pounds and who was
alone at home at the time except for Kristin, came into the loft area
in which she slept and raped her.
This was the start of a
protracted sexual relationship. In the months that followed, Bruce
frequently would call the high school that Kristin was attending and
report her ill. Then, with Mrs. Bruce off at work and the Bruce's
daughter at school, Bruce would have sex with Kristin. By February 22,
Kristin had been absent 27 days from school. Bruce brandished a gun and
told Kristin that he would kill himself if she told anyone what they
were doing together.