B.N. v. K.K.

• Decision Date: 01 September 1987
• Docket Number: No. 7,7
• Citation: 538 A.2d 1175,312 Md. 135
• Parties: B.N. v. K.K. Misc.,
• Court: Maryland Court of Appeals

Page 135

312 Md. 135

538 A.2d 1175

B.N. v. K.K.

Misc. No. 7, Sept. Term, 1987.

Court of Appeals of Maryland.

March 29, 1988.

Susan R. Green and Gary S. Bernstein (Rochlin & Settleman, P.A., on the brief), Baltimore, for appellant.

Joseph F. Devereux, Jr. (Robert L. Devereux of St. Louis, Mo., and Barry C. Steel, Towson, on the brief), for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

This is a case certified to us by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Md.Code (1984 Repl.Vol.) Cts. & Jud.Proc. Art. §§ 12-601 through 12-609. The certified question is:

Does Maryland Recognize A Cause of Action for Either Fraud, Intentional Infliction Of Emotional Distress, Or Negligence Resulting From the Sexual Transmission Of A Dangerous, Contagious, and Incurable Disease, Such As Genital Herpes?

Our answer is affirmative as to each named cause of action, subject to the proviso that there be a proper factual showing in every case. We add, too, that even if a plaintiff makes the requisite factual showing, the defendant, obviously, may raise various defenses. We do not address possible defenses because we have not been asked to do so.

In this case, appellant, B.N. (Ms. N.), has sued appellee, K.K. (Dr. K.), in the United States District Court, under that court's diversity jurisdiction. 28 U.S.C. § 1332. The federal court's certification order instructs us:

The sufficiency of the Plaintiff's Complaint regarding the allegations of the elements of each tort is not part of the certified question. The Court of Appeals is asked to assume the sufficiency of each Count of the Complaint as plead by the Plaintiff [Ms. N.]. The facts are those facts alleged by the complainant in support of her causes of action.

Those facts, or those pertinent to our decision, we now state in summary form.

Between July and December 1983, Ms. N. was employed as a nurse at Johns Hopkins Hospital in Baltimore. For part of the period, Dr. K. also worked there. From July through October of that year, Ms. N. and Dr. K. "were involved in an intimate boyfriend-girlfriend relationship" and "engaged in acts of sexual intercourse." While this was going on, Dr. K. knew he had genital herpes, but never disclosed that fact to Ms. N., who neither knew nor had any reason to believe that Dr. K. "was a carrier of genital herpes." On or about 1 October 1983, Ms. N. and Dr. K. engaged in sexual intercourse. On that date Dr. K. knew that his disease was active and would be transmitted to Ms. N. through sexual intercourse. That result in fact occurred and was caused by Dr. K.'s conduct, Ms. N. never having engaged in sexual contact with anyone but Dr. K. during the relevant period.

On the basis of these general allegations, as well as some others contained in particular counts, to some of which we shall later refer, Ms. N. charged Dr. K. with fraud (count one); intentional infliction of emotional distress (count two); negligence (count three); and assault and battery (count four). ¹

We shall address each of the first three asserted causes of action, but in an order inverse to that of the counts. By way of preliminary statement, however, we note that although the certified question appears to be one of first impression in Maryland, traditional tort or criminal law concepts have frequently been applied to produce liability for the transmission of contagious disease. We shall apply conventional doctrine here. ² Before we do so we shall supply a context for our discussion by listing the principal characteristics of genital herpes. Genital herpes is a contagious, ³ painful, ⁴ and incurable ⁵ disease that is spread by sexual contact. ⁶ It is an infectious disease that endangers public health. ⁷

I. Negligence

The traditional elements of a cause of action in negligence may be stated as:

1. A duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on the person's part to conform to the standard required: a breach of the duty....

3. A reasonably close causal connection between the conduct and the resulting injury....

4. Actual loss or damage resulting to the interests of another....

W. P. Keeton, Prosser and Keeton on the Law of Torts, 164-165 (5th ed. 1984) [footnotes omitted] [hereinafter Prosser]. See also Restatement (Second) of Torts § 281 (1965). This is the accepted doctrine in Maryland. Maenner v. Carroll, 46 Md. 193, 212 (1877); R.P. Gilbert, P. Gilbert & R.J. Gilbert, Maryland Tort Law Handbook § 1.4 (1986) [hereinafter Gilbert].

The notion of duty is founded on the "responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others." Moran v. Faberge, 273 Md. 538, 543, 332 A.2d 11, 15 (1975). "When a reasonable person knows or should have known that certain types of conduct constitute an unreasonable risk of harm to another, he or she has the duty to refrain from that conduct." McCance v. Lindau, 63 Md.App. 504, 514, 492 A.2d 1352, 1358 (1985). An important factor used to determine the existence of a duty is foreseeability. This test, whether in the context of causation or duty, is "intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm, and to avoid the attachment of liability where, in the language of Section 435(2) of the Restatement (Second) of Torts (1965), it appears 'highly extraordinary' that the negligent conduct should have brought about the harm." Henley v. Prince George's County, 305 Md. 320, 334, 503 A.2d 1333, 1340 (1986). By the same token, a duty is readily found if it appears highly likely that the conduct in question should have brought about the harm. See, Restatement (Second) of Torts § 435(2) (1965); F. Harper, F. James, Jr., & O. Gray, 3 The Law of Torts, 656-659 & nn. 8 & 9 (2d ed. 1986); and Prosser, supra, at 298-300.

One who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact. As a consequence, the infected person has a duty to take reasonable precautions--whether by warning others or by avoiding contact with them--to avoid transmitting the disease. "Hence, if defendant knew that he was afflicted with smallpox it then became and was his duty to keep away from other persons, or should other persons approach him to notify them of the fact so that they might protect themselves." Hendricks v. Butcher, 144 Mo.App. 671, 674, 129 S.W. 431, 432 (1910). It is "well established that one who negligently--that is, through want of ordinary care--exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor, in the absence of contributory negligence...." Kliegel v. Aitken, 94 Wis. 432, 435, 69 N.W. 67, 68 (1896). And in Long v. Adams, 175 Ga.App. 538, 333 S.E.2d 852 (1985), the court held that a woman breached her duty of care when, knowing she had genital herpes, she engaged in sexual intercourse with a man without informing him of that fact. See also Duke v. Housen, 589 P.2d 334, 340 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979), in which the male appellant escaped liability for negligently transmitting gonorrhea to a female friend, but only because the statute of limitations had run. See also, S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo.1986) (Abrogating doctrine of spousal immunity in wife's action charging husband with negligent transmission of genital herpes).

As we have seen, Ms. N. has alleged that Dr. K., knowing he had active genital herpes, a highly contagious, sexually transmitted disease, had sexual intercourse with her. See nn. 3 & 6, supra. If she can prove these allegations, it would be reasonably foreseeable by Dr. K. (or a fact-finder could so conclude) that Ms. N. would be harmed by his conduct. She was a clearly identified potential victim. See Henley, 305 Md. at 335-336, 503 A.2d at 1341 (foreseeable identification of a plaintiff is relevant to the determination of a duty to warn). As a consequence, Dr. K. had a duty either to refrain from sexual contact with Ms. N. or to warn her of his condition. If, as she charges, he negligently failed to do either, he breached his duty.

Ms. N. also has alleged that as the direct result of this breach of duty, she contracted a serious, painful, and incurable disease. See nn. 4 & 5, supra. Her complaint avers facts that, if believed, show the existence of a duty, the defendant's breach of that duty, and actual injury to her proximately caused by the breach. She has stated a cause of action in negligence that is cognizable under Maryland law. For a discussion of the application of negligence principles to the transmission of genital herpes, see generally, Note, "Kathleen K. v. Robert B.: A Cause of Action for Genital Herpes Transmission," 34 Case W.Res.L.Rev. 498, 513-518 (1984) [hereinafter Note, "Kathleen K."]; Note, "Liability in Tort for the Sexual Transmission of Disease: Genital Herpes and the Law," 70 Cornell L.Rev. 101, 110-124 (1984) [hereinafter Note, "Liability"]; Note, "HERPES--A Legal Cure--Can the Law Succeed Where Medicine Has Failed?," 61 U.Det.J.Urb.L. 273, 275-279 & 282-283 (1984); Comment, "You Wouldn't Give Me Anything, Would You? Tort Liability for Genital Herpes," 20 Cal.W.L.Rev. 60, 64-73 (1983); and Comment, "The Consequences of an Uninformed Menage a Trois Extraordinaire: Liability to Third Parties for the Nondisclosure of Genital Herpes Between Sexual Partners," 29 St. Louis U.L.J. 787, 793-801 (1985).

II. Infliction of Emotional Distress

In Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611, 614 (1977), we agreed "that the independent tort of intentional...