Berner v. Caldwell

CourtSupreme Court of Alabama
Writing for the CourtJONES; HORNSBY; HOUSTON
Citation543 So.2d 686
Decision Date14 April 1989
PartiesSheryl BERNER v. Don T. CALDWELL. 87-646.

Page 686

543 So.2d 686
Sheryl BERNER
v.
Don T. CALDWELL.
87-646.
Supreme Court of Alabama.
April 14, 1989.

Page 687

Bill G. Hall of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.

Earl E. Cloud of Cloud & Cloud, Huntsville, for appellee.

JONES, Justice.

This is an appeal from a summary judgment entered in favor of the defendant, Don T. Caldwell, and made final pursuant to Rule 54(b), A.R.Civ.P. The plaintiff, Sheryl Berner, alleged that Caldwell had negligently or intentionally transmitted herpes simplex virus type II (genital herpes) to her during the course of their sexual relationship. Ms. Berner sought compensatory as well as punitive damages under theories of wantonness, fraudulent suppression, willful misrepresentation, battery, and assault, in addition to her claim based on negligence. The evidence proferred by Ms. Berner in opposition to the summary judgment motion presented genuine issues of material fact on the negligence claim, but did not do so on the other claims under which she sought recovery. We, therefore, reverse the summary judgment as to the negligence claim, and affirm as to the other claims.

As a part of her complaint, Berner alleged that she had never had a sexual relationship with anyone until she met Caldwell, and that Caldwell was her exclusive sexual partner during their relationship. Near the end of their relationship, Berner developed an infection, which a physician told her was a symptom of genital herpes. Further tests revealed that her blood contained elevated amounts of the antibody to herpes simplex virus type II.

In his answer to her complaint, Caldwell alleged that he had had no knowledge that he carried the disease either at the time of their relationship, or at any other time. Caldwell also alleged that Berner had assumed the risk of contracting a venereal disease, and he counterclaimed, alleging defamation. The trial judge, after reviewing Caldwell's affidavit and Berner's deposition, granted Caldwell's motion for summary judgment on Berner's complaint. Caldwell's counterclaim is still pending.

The standard used to determine the propriety of granting a motion for summary judgment is found in A.R.Civ.P. 56(c):

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Page 688

The burdens placed on a party by this rule have often been discussed by this Court:

"The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980)."

Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala.1985).

In setting forth and applying this well-established summary judgment standard, we are aware that this Court, in the recent case of Lawson State Community College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988), quoted extensively from the United States Supreme Court case of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), which we perceive as containing contradictory statements with respect to the movant's burden of proof. See, also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

To the extent that certain language from these three United States Supreme Court cases, as well as certain language from Lawson State, may be interpreted as shifting the burden to the nonmoving party to show genuine issues of material fact, such language is expressly rejected and overruled. Where the plaintiff's statement of the claim correctly withstands a motion to dismiss, we continue to interpret (as evidenced by the holding in Lawson State ) both the language and the spirit of Rule 56(c), A.R.Civ.P., to impose upon the movant the burden of showing material facts, which, if uncontested, entitle the movant to judgment as a matter of law.

The plaintiff in this case has alleged, and presented credible evidence, that she contracted a disease that can be transmitted only by intimate sexual contact; that the defendant was the only person with whom she had sexual contact; that she did not have the disease prior to their relationship; and that near the end of their relationship she discovered that she had the disease. Plaintiff thus relies upon an inference that the defendant is the only person who could have transmitted the disease to her. Alleging that the defendant intentionally failed to disclose to her the fact that he carried the disease, the plaintiff sought compensatory and punitive damages. The trial judge believed either that the inference upon which the plaintiff relies is not strong enough to support any of the theories of recovery, or that Alabama does not recognize an actionable claim for the contraction of a venereal disease under any sort of circumstances.

We disagree with both of these conclusions. The pleadings and the evidence produced in favor of, and that produced in opposition to, the motion for summary judgment, when viewed in the light most favorable to the plaintiff (the nonmoving party), do not display a complete lack of any genuine issue of material fact, which, if resolved in plaintiff's favor, will support an actionable claim for negligence. Therefore, the plaintiff has stated an actionable tort claim under the laws of the State of Alabama based on the transmission of genital herpes. Accordingly, we affirm the judgment with respect to the claims of wantonness, fraudulent suppression, willful misrepresentation, battery, and assault; and we reverse the judgment with respect to the negligence claim.

For over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others. 1 This result has also long

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been reached in cases dealing with the transmittal of venereal diseases. 2 Several recent decisions in other jurisdictions have specifically imposed liability where the disease involved was genital herpes. 3

This Court finds the reasoning of these cases persuasive and recognizes that a cause of action for the tortious transmittal of herpes simplex virus type II (genital herpes) exists under the law of Alabama. Our holding is in line with the public policy of this state, which...

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235 practice notes
  • Little v. Consol. Publ'g Co., 2090705.
    • United States
    • Alabama Court of Civil Appeals
    • May 13, 2011
    ...element of the nonmovant's claim....’ " Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). Hence, at this stage of the proceeding, CPC and Nichols bore the burden of proving either tha......
  • John B. v. Superior Court, No. S128248.
    • United States
    • United States State Supreme Court (California)
    • July 3, 2006
    ...imposed liability on individuals who have harmed others by transmitting communicable diseases. (See, e.g., Berner v. Caldwell (Ala. 1989) 543 So.2d 686, 688 ["For over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others"]; ......
  • People v. Jensen, Docket No. 210655
    • United States
    • Court of Appeal of Michigan (US)
    • August 28, 1998
    ...45 Ohio St.3d 314, 319, 544 N.E.2d 265 (1989) (there is no duty to disclose this private information to everyone); Berner v. Caldwell, 543 So.2d 686, 688-689 (Ala., 1989) (Ala Code 22-11-21[c] made it a misdemeanor to knowingly transmit or do any act likely to transmit sexually transmitted ......
  • Laster v. Norfolk Southern Ry. Co., Inc., 1050532.
    • United States
    • Supreme Court of Alabama
    • January 16, 2009
    ...by [Norfolk Southern], or [could] submit an affidavit requesting additional time for discovery....'" Id. (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).6 However, Laster did not provide any additional evidence regarding Raymond's appreciation......
  • Request a trial to view additional results
235 cases
  • Little v. Consol. Publ'g Co., 2090705.
    • United States
    • Alabama Court of Civil Appeals
    • May 13, 2011
    ...element of the nonmovant's claim....’ " Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). Hence, at this stage of the proceeding, CPC and Nichols bore the burden of proving either tha......
  • John B. v. Superior Court, No. S128248.
    • United States
    • United States State Supreme Court (California)
    • July 3, 2006
    ...imposed liability on individuals who have harmed others by transmitting communicable diseases. (See, e.g., Berner v. Caldwell (Ala. 1989) 543 So.2d 686, 688 ["For over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others"]; ......
  • People v. Jensen, Docket No. 210655
    • United States
    • Court of Appeal of Michigan (US)
    • August 28, 1998
    ...45 Ohio St.3d 314, 319, 544 N.E.2d 265 (1989) (there is no duty to disclose this private information to everyone); Berner v. Caldwell, 543 So.2d 686, 688-689 (Ala., 1989) (Ala Code 22-11-21[c] made it a misdemeanor to knowingly transmit or do any act likely to transmit sexually transmitted ......
  • Laster v. Norfolk Southern Ry. Co., Inc., 1050532.
    • United States
    • Supreme Court of Alabama
    • January 16, 2009
    ...by [Norfolk Southern], or [could] submit an affidavit requesting additional time for discovery....'" Id. (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).6 However, Laster did not provide any additional evidence regarding Raymond's appreciation......
  • Request a trial to view additional results

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