Hamblen v. Davidson

• Decision Date: 08 November 2000
• Docket Number: 00-00144
• Citation: 50 S.W.3d 433
• Parties: PAM HAMBLEN v. RICHARD DAVIDSONIN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On Briefs
• Court: Tennessee Court of Appeals

PAM HAMBLEN v RICHARD DAVIDSON

No. W2000-00144-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

On Briefs July 14, 2000

November 8, 2000

Rule 3 Appeal from the Circuit Court for Obion County No. 8-495

Steve Stafford, Judge by Interchange

This appeal arises from a personal injury suit in which Plaintiff alleged that her ex-husband had negligently infected her with the virus which causes genital herpes. The trial court granted Defendant's motion for summary judgment, finding that: (1) the one-year statute of limitations, T.C.A. § 28-3-104, barred Plaintiff's claim; (2) Plaintiff failed to establish that Defendant knew or should have known he had herpes, and owed her a duty to warn her of his condition; and (3) Plaintiff failed to establish that she contracted the virus from Defendant. Plaintiff appeals.

Tenn.R.App.R.3 Appeal as of Right; Judgment of the Trial Court Reversed

David L. Hamblen, Union City, for appellant, Pam Hamblen

Damon E. Campbell, Union City, for appellee, Richard Davidson

W. Frank Crawford, P.J., W.S., delivered the opinion of the court, in which Alan Highers and David Farmer, joined.

OPINION

Plaintiff, Pam Hamblen, sued her ex-husband, defendant, Richard Davidson, for damages resulting from his negligence in infecting her with the genital herpes virus. From the order of the trial court granting defendant summary judgment, plaintiff appeals. The trial court granted Defendant's motion for summary judgment on the grounds that: (1) the one-year statute of limitations barred Plaintiff's claim; (2) Plaintiff failed to show that Defendant knew or should have known he was infected with the virus which causes genital herpes and therefore owed Plaintiff a duty to warn her of his condition; and (3) Plaintiff failed to prove that Defendant's actions were the proximate cause of her injuries.

On March 11, 1997, Plaintiff Pam Hamblen and her husband, Defendant Richard Davidson, divorced after 22 years of marriage. In October of 1996, Plaintiff discovered that her husband had been involved in an extramarital relationship since October of 1994. Between 1995 and 1997, Plaintiff experienced three "rashes" in her genital tract which she testified were not "severe enough" to cause her concern. Plaintiff's physician, Dr. Robert Cameron, testified at his deposition that rashes of the kind Plaintiff experienced are not uncommon in women, and may be caused by a number of things, including use of deodorants, soaps, perfume, or even wearing tight clothing.

At the time she experienced the first rash, Plaintiff discussed it with Defendant. Plaintiff also testified that, approximately a week and a half before the initial rash, she observed Defendant "doctoring" a similar rash on his penis. At that time, Plaintiff claims Defendant told her he had poison ivy, which he explained he must have gotten when he was golfing, and that he transferred the poison ivy from his hands to his penis when he relieved himself in the woods. Since Defendant often got poison ivy on his outings with the couple's son, Plaintiff testified she did not question Defendant's explanation of the rash. Plaintiff also testified that, on another occasion, she observed a red spot on Defendant's penis, which Defendant claimed was a "scratch."

Several weeks after she discovered that Defendant was engaging in extramarital relationships, Plaintiff asked her physician to give her an AIDS test. The results of that test were negative, and Plaintiff testified that she did not investigate the possibility that she had any other sexually transmitted diseases ("STD's") at that time because she was not "knowledgeable enough" about them. It was not until September, 1997, after seeing a television program on herpes, that Plaintiff approached her physician regarding the rashes. Plaintiff's physician told her to return if she had another rash, and in November of 1997, Plaintiff tested positive for the virus which causes herpes.

Plaintiff has only had one other sexual partner, Mark McCullough. Plaintiff testified that she engaged in sexual intercourse with Mr. McCullough one time in 1973, before her marriage to Defendant. Mr. McCullough tested positive for herpes simplex virus I and negative for herpes simplex virus II. The parties presented conflicting evidence regarding the significance of the different forms of the herpes virus. Defendant argued that the two forms of the virus are essentially the same, and that Plaintiff could have contracted the virus from her sexual contact with Mr. McCullough. Plaintiff presented evidence that it is unlikely she has the herpes simplex I virus, because that type of virus usually is only associated with blisters on the lips. Plaintiff's physician testified that the type I virus could only cause sores below the waist if an individual infected with the virus touched the sores on his lips to the genital area of another person. Plaintiff claims that, since she never engaged in any type of oral sex with Mr. McCullough, he cannot be the source of her infection.

Plaintiff sued her husband for negligence in infecting her with the herpes virus, alleging that he had a duty to refrain from any conduct which could cause her injury. Plaintiff claims that, even if Defendant did not know he had a communicable venereal disease, Defendant owed her a duty to warn her that he was engaged in an extramarital affair and could potentially be exposing her to risk. The trial court, in granting Defendant's motion for summary judgment found that the Plaintiff should have known that she had herpes in October, 1996. The court also found that Defendant did not owe Plaintiff a duty to warn because the evidence did not show that Defendant knew or should have known he had a venereal disease. Finally, the court found that Plaintiff did not present sufficient evidence to show that, even if such a duty existed, the Defendant was the source of her herpes infection.

The issues presented in this appeal are:

1. Whether the statute of limitations barred Plaintiff's claim for negligent transmission of the herpes virus.

2. Whether the Defendant had a duty to prevent transmitting herpes to Plaintiff if he knew or should have known he was infected with the herpes virus.

3. Whether Plaintiff has carried her burden in showing that Defendant's breach of the duty to prevent transmission was the proximate cause of her herpes infection.

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 210-11 (citations omitted)(emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court's grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

Statute of Limitations

The first issue for review is whether the trial court erred in granting summary judgment for Defendant based upon the one-year statute of limitations in personal injury cases. Under T.C.A. § 28-3-104 (Supp. 1999), actions for personal injuries must be brought within one year after the cause of action accrues. As we noted in Craig v. R.R. Street & Co., Inc., 794 S.W.2d 351, 355 (Tenn. Ct. App. 1990), the determination of when a cause of action accrues is problematic. Although the cause of action "generally accrues when the tort is complete and injury to the plaintiff has occurred. . . [i]n certain tort actions. . . the accrual of the cause of action is deferred until the injury is discovered or in the exercise of reasonable care and diligence, the injury should have been discovered." Hunter v. Brown, 955 S.W.2d 49, 51 (Tenn. 1997) (citations omitted). The discovery rule only applies in cases where the plaintiff does not, and cannot reasonably be expected to, discover the harm giving rise to the cause of action. Potts v. Celotex, 796 S.W.2d 678, 680 (Tenn. 1990). The rule only tolls the statute of limitations as long as the plaintiff had no knowledge of the injury and "as a reasonable person was not put on inquiry." Id. at 681. The requirement that a plaintiff exercise "reasonable care and diligence" is consonant with the purpose of statutes of limitation: fairness to defendants in preventing "stale" claims. It is with these considerations in mind that we address the issue of whether summary judgment based upon the statute of limitations was proper in this case.

Plaintiff asserts that she was not aware that she had herpes prior to November 6, 1997, when she tested positive for the herpes virus. Defendant argues that a reasonable person in Plaintiff's position would have discussed the possibility of sexually...