Endres v. Endres

• Decision Date: 19 September 2008
• Docket Number: No. 07-395.,07-395.
• Citation: 2008 VT 124,968 A.2d 336
• Parties: Joan E. ENDRES v. Kevin J. ENDRES.
• Court: Vermont Supreme Court

968 A.2d 336

2008 VT 124

Joan E. ENDRES v. Kevin J. ENDRES.

No. 07-395.

Supreme Court of Vermont.

September 19, 2008.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for Plaintiff-Appellant.

John L. Pacht and Gregory A. Weimer of Hoff Curtis, Burlington, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

For the second time, we consider the suit of wife, Joan Endres, against her former husband, Kevin Endres, for negligent transmission of a sexually transmitted disease (STD). See Endres v. Endres, 2006 VT 108, 180 Vt. 640, 912 A.2d 975 (mem.) (affirming dismissal of wife's claims for battery and intentional inflection of emotional distress and reversing dismissal of negligence claim). Wife's suit alleges that, while they were married, husband negligently infected her with Human Papillomavirus (HPV). The superior court granted husband summary judgment, concluding that wife failed to demonstrate that husband breached a duty because wife provided no evidence that husband knew or should have known that he had HPV. On appeal, wife argues that there remain issues of material fact as to whether husband should have known he was infected. We affirm.

¶ 2. Wife and husband were married in 1972 in New York, and thereafter took up residence in Milton, Vermont. At some point during the course of the marriage, husband was involved in an extramarital relationship. In July 1999, during a routine pap smear, wife tested positive for HPV, a disease that is transmitted by skin-to-skin contact, including through sexual intercourse. Subsequently, wife was formally diagnosed with HPV, and later tested positive for types of HPV that cause cervical, vulvar, oral, sinus, and anal cancer.

¶ 3. In 2003, wife commenced suit, bringing claims for negligence, battery, and intentional infliction of emotional distress. In particular, with respect to the negligence claim, wife alleged that husband "knew that by engaging in an extramarital relationship he exposed himself to potential risk of becoming infected with an incurable infection which he could then transmit to [wife]" and that husband "had a duty to refrain from extramarital relationships and to protect [wife] from infection." Wife alleged that husband breached this duty when he engaged in extramarital sex and then took no steps to protect wife from infection.

¶ 4. Husband moved to dismiss under Vermont Rule of Civil Procedure 12(b)(6), arguing that wife failed to state a claim upon which relief could be granted. The superior court agreed and granted husband's motion, reasoning that "each and every case allowing for tort recovery for the transmission of sexually transmitted diseases has premised recovery on the defendant's actual or constructive knowledge of the disease." The court concluded that wife had failed to allege such knowledge, stressing that mere "[p]romiscuity or infidelity has never been held to support such an inference of knowledge."

¶ 5. On appeal, we affirmed the dismissal of wife's claims for battery and intentional infliction of emotional distress, stating that those claims required "an allegation that husband actually knew he was infected with HPV." Endres, 2006 VT 108, ¶ 6, 180 Vt. 640, 912 A.2d 975. We reversed the court's dismissal of wife's negligence claim. Id. ¶ 5. Although we acknowledged that wife had not yet set forth any facts demonstrating that husband owed her, or had breached, a legal duty, we held that wife's assertion of negligence and related injury sufficed to survive a Rule 12(b)(6) motion. Id. ("[I]t is sufficient against a motion to dismiss to allege that defendant acted negligently and as a result plaintiff was injured." (quotation omitted)).

¶ 6. On remand, after discovery concluded, husband moved for summary judgment, arguing that wife had failed to raise an issue of material fact as to his actual or constructive knowledge of infection. Specifically, husband relied upon his affidavit that stated that he had never been diagnosed with or exhibited any symptoms of HPV. Further, he stated that he has no reason to believe that he has HPV and believes he does not have HPV. Based on the affidavit, husband argued that it was undisputed that he did not have actual or constructive knowledge that he had HPV and could transmit it to wife. He further contended that wife had failed to raise an issue of material fact as to causation, because she had not demonstrated that husband had given her HPV or even that she had acquired HPV through sexual contact.

¶ 7. In response, wife filed her own affidavit and one from a doctor. Her affidavit averred that husband had "at least one extra-marital relationship" and that "[a]s an apparent result of this relationship(s), [husband] infected [her] with . . . HPV." She stated that, prior to a pap smear in 1999, her tests were negative for HPV. She claimed that she had had no sexual partners other than husband so that "[t]here [was] no other possible source of [her] HPV infection than from [husband]." The affidavit of the physician explained, among other things, that: (1) seventy to eighty percent of women are infected with HPV at some time in their lives; (2) the number of sexual partners, or the number of sexual partners of a partner, increases the risk of infection; (3) there is no medical cure for HPV; and (4) there is no reliable method to determine HPV infection for men.

¶ 8. With respect to the element of causation, based on the information in the affidavits, wife responded that: (1) her medical records showed that she had not been diagnosed with an STD before 1999; (2) her records indicated that she was diagnosed with HPV in 1999; (3) pap testing would have produced evidence of HPV prior to 1999 had wife been infected; (4) wife was diagnosed with cervical HPV, which is transmissible through sexual contact; and (5) wife had sexual contact in the relevant period only with husband.

¶ 9. In assessing husband's motion for summary judgment, the trial court examined what duty husband owed to wife. Based on case law in other states, the court concluded that wife would have to show that husband knew or should have known that he had HPV to demonstrate that he breached a duty owed to wife. The court explained husband's knowledge in this case as follows:

[Husband] claims he did not know he was a carrier, had no symptoms, and in fact has never been diagnosed as having HPV. [Wife], in turn, does not present any evidence that [husband] knew he was carrying this STD, or indeed, that he actually carried it. Indeed, [wife]'s expert states that there is no reliable method of diagnosing men with HPV until symptoms appear. [Wife] does not contest the fact that [husband] was asymptomatic, and offers no other proof suggesting he knew he was infected. Allegations alone cannot create triable issues of fact. Thus, the mere fact that [wife] contracted HPV does not constitute evidence that [husband] knew he had it.

(Citations omitted.) Without any evidence to demonstrate that husband knew or should have known he was infected, the court concluded that wife failed to demonstrate that husband breached a duty owed to her and granted husband summary judgment. Wife now appeals.

¶ 10. We review an award of summary judgment de novo, construing all doubts and inferences in favor of the nonmoving party. In re Mayo Health Care, Inc., 2003 VT 69, ¶ 3, 175 Vt. 605, 830 A.2d 129 (mem.). The inquiry is familiar: whether there are any genuine issues of material fact and whether, in their absence, either party deserves judgment as a matter of law. Id.; see V.R.C.P. 56(c)(3). Under Rule 56(e), the nonmoving party has the burden of submitting credible documentary evidence or affidavits sufficient to rebut the evidence of the moving party. See Boulton v. CLD Consulting Eng'rs, Inc., 2003 VT 72, ¶ 5, 175 Vt. 413, 834 A.2d 37.

¶ 11. To support her negligence claim, wife must show that husband owed her a legal duty, that he breached that duty, that the breach was the proximate cause of her injury, and that she suffered actual loss or damage. See O'Connell v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42 (1995) (listing elements of common law negligence). Duty, the first element, is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). Duty is "`an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'" Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)). Although we have not addressed the question directly, courts have uniformly imposed on persons with communicable diseases a tort duty not to infect others. See Berner v. Caldwell, 543 So.2d 686, 688 n. 1 (Ala.1989) (collecting cases), overruled on other grounds by Ex parte General Motors Corp., 769 So.2d 903 (Ala. 1999); see generally D. Mack, Cleansing the System: A Fresh Approach to Liability for the Negligent or Fraudulent Transmission of Sexually Transmitted Diseases, 30 U. Tol. L.Rev. 647 (1999). Such a duty extends to transmission of STDs. See Berner, 543 So.2d at 689 n. 2.

¶ 12. This case primarily turns on what a plaintiff must demonstrate to show a breach of the duty not to infect others with an STD. The question is hardly a novel one, and our sister jurisdictions have been almost unanimous in their answer to it. In recognizing the duty not to transmit an STD to a sexual partner, courts require persons to exercise ordinary care to avoid transmission. To establish an actionable breach of that standard of care, the plaintiff must show that the defendant had actual or constructive knowledge that he or she was infected with the transmitted STD. See, e.g., John B. v. Superior Court, 38 Cal.4th 1177, 45 Cal.Rptr.3d 316, 137 P.3d 153, 160 (2006) (collecting cases).

¶ 13. This approach is in keeping with the general...