Lockhart v. Loosen
| Decision Date | 15 July 1997 |
| Docket Number | No. 86836,86836 |
| Citation | 1997 OK 103,943 P.2d 1074 |
| Parties | Teresa LOCKHART, Appellant, v. Marette LOOSEN, Appellee. |
| Court | Oklahoma Supreme Court |
Michael E. Smith, of Barnes, Smith & Lewis, P.C., Oklahoma City, for Appellant.
Daniel J. Hoehner, of Chubbuck, Bullard & Hoehner, Oklahoma City, for Appellee.
¶1 Dispositive of Loosen's appeal is whether there are factual issues which should have been resolved by the trier of fact before it dismissed her claim with prejudice. Application of traditional common-law principles of causation require that Lockhart's claim be remanded to the district court for further proceedings.
¶2 Lockhart alleges that Loosen--knowing she had genital herpes--engaged in sexual intercourse with David Lockhart [appellant's husband]. She contends that Loosen not only failed to warn Lockhart's husband of her contagion but also affirmatively communicated to him that she did not have any sexually transmittable diseases [STD]. Lockhart later contracted herpes simplex virus II from her husband. Appellant alleges that Loosen knew that her sexual liaison with Mr. Lockhart was extramarital and was aware of his wife's identity.
¶3 Seeking redress for the harm related to contracting herpes, Lockhart brought an action against Loosen based upon theories of negligence, fraud, the intentional and negligent infliction of emotional distress and negligence per se. Loosen moved for the suit's dismissal, urging (1) that David Lockhart's infidelity was the proximate cause of his wife's harm and (2) that she owed no duty of care to the wife. The trial court dismissed the case with prejudice and this appeal followed. The Court of Civil Appeals [COCA] affirmed the dismissal below on all theories of liability except negligence. Loosen sought certiorari which we granted. 1
¶4 A trial court's dismissal of an action for failure to state a claim upon which relief can be granted is reviewed de novo. 2 To assay the sufficiency of the plaintiff's petition to state a legally cognizable claim we must determine whether relief is possible under any set of facts that could be proved consistent with the pleadings' allegations. 3 All inferences and conclusions which can be deduced from the evidentiary materials must be drawn in the light most favorable to the non-moving party. 4 Further, to resist a motion to dismiss it is not necessary for a plaintiff to either identify a specific theory of recovery or to identify the correct remedy or relief to which he/she may be entitled. 5
¶5 Generally motions to dismiss are viewed with disfavor. Under most circumstances a plaintiff's petition is only dismissible (1) for want of a cognizable legal theory of liability or (2) for insufficient facts under the advanced theory. 6
OF LIABILITY ON A VIOLATION OF 63 O.S.1991 § 1-519
's PROVISIONS
¶6 Plaintiff's claim rests in part upon Loosen's alleged violation of a statutory duty 7 which, Lockhart asserts, constitutes negligence per se. A statute's violation is deemed negligence per se if the claimed injury (a) was caused by the law's violation, (b) was of the type intended to be prevented by the statute, and (c) the injured party was a member of the class meant to be protected by the statute. 8
¶7 Discernment of legislative intent is required to place the plaintiff within the class of persons meant to be protected by the ambit of 63 O.S.1991 § 1-519. 9 It is the ascertainment of this intent which is the cardinal rule of statutory construction. 10 A statute's language, when given its plain and ordinary meaning, is the yardstick for divining the drafters' objective. 11 Here legislative intent becomes clear when the language of the entire, key § 1-519 phrase--"to expose any other person by the act of copulation or sexual intercourse" [Emphasis added]--is considered. The legislative enactment proscribes persons with active, transmittable venereal diseases from engaging in sexual intercourse with other persons. The parties whom the act intends to protect are those with whom an infected person would copulate. The statute does not impose upon the infected person a duty to communicate the fact of their contagion to their partners or to third persons. It requires them not to engage in sexual intercourse while their condition is infectious.
¶8 Lockhart--a third party under this statute's aegis--may not assert a negligence-per-se theory of liability against Loosen based upon a violation of § 1-519's terms. Loosen did not engage in sexual intercourse with her and had no affirmative statutory duty to inform Lockhart of her contagion, if any. If the onus of § 1-519's language rests upon anyone, it rests upon the plaintiff's husband. When the straightforward language of the act is considered, it is obvious (1) that the plaintiff is not a member of the class meant to be protected by the statute's language and (2) the act's language does not create a duty of care which is owed to someone other than a sexual partner.
THE NEGLIGENCE-RELATED CLAIM
¶9 Under Oklahoma's extant jurisprudence the three essential elements of a prima facie case of negligence are: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly perform that duty, and (3) the plaintiff's injury being proximately caused by the defendant's breach. 12 Actionable negligence requires that the act complained of be the direct cause of the harm for which liability is sought to be imposed. 13 Further, whether the complained of negligence is the proximate cause 14 of the plaintiff's injury is dependent upon the harm (for which compensation is sought) being the result of both the natural and probable consequences of the primary negligence. 15 This latter determination is critical to assaying the foreseeability of the injury as a result of the initial negligence and hence to establishment of a prima facie case. 16
¶10 For an intervenor's act to become a "supervening cause" and cut off possible liability for the original negligence, it must (1) be independent of the primary negligence, (2) be adequate of itself to bring about the injury complained of and (3) not be a reasonably foreseeable event. 17 When such an act qualifies as a supervening cause, the original negligence mutates into a mere condition and as a matter of law is no longer actionable. 18 When, however, the intervening act is a reasonably foreseeable consequence of the primary negligence, the original wrongdoer will not be relieved of liability. 19 Also, where the primary act of negligence is not superseded by a second cause--i.e., continues to operate concurrently, so that damage is the result of both causes acting in concert--each act may be regarded as the proximate cause and the wrongdoers will be jointly and severally liable for the plaintiff's compensable harm. 20
¶11 Traditionally, causation in a negligence action lies within the realm of fact, not law. 21 Whether a negligent event's injurious consequences could have been reasonably foreseen presents a jury question. 22 Whether an intervening act is foreseeable also calls for an evaluative determination by the trier of fact. 23 It is only "where the evidence together with all inferences which may be properly deduced therefrom is insufficient to show a causal connection between the alleged wrong and the injury" that the issue of proximate cause becomes a question of law. 24
¶12 The common-law principles of causation, applicable here, were succinctly summarized in Graham v. Keuchel, 847 P.2d 342 (Okla.1993), where the Court--in assessing liability between an original wrongdoer and an intervenor [referred to in its opinion as "third party"]--held:
A person is not generally deemed liable at common law for a third party's deliberate act. A third person's intentional tort is a supervening cause of the harm that results--even if the actor's negligent conduct created a situation that presented the opportunity for the tort to be committed--unless the actor realizes or should realize the likelihood that the third person might commit the tortious act. A negligent actor is not bound to anticipate another's wrongful act after the latter has discovered the danger that arises from the former's negligence. Lapse of time or other reason--such as, e.g., the third person's discovery of the original actor's negligence or the former's deliberate assumption of control of the situation--may cause the duty to prevent harm to another, threatened by the original actor's negligent conduct, to shift from that actor to the third person. When this happens the third person's failure to prevent the threatened harm may be a supervening cause. [Citations omitted.] Id. at 350-51.
It is through the lens of these principles and examination of the facts as disclosed by the record and the logical inferences that can be drawn from them that the propriety of the trial court's dismissal of Lockhart's negligence claim is determined. There is a paucity of facts in the record. Loosen stipulated that she has herpes only for purposes of the motion to dismiss. She did not stipulate that she had not told Mr. Lockhart of this fact. The record does not evidence whether Mr. Lockhart had developed symptoms of, or knew that he had, herpes before he engaged in sex with the plaintiff.
¶13 An essential element of Lockhart's proof is that a duty of care is owed to her by Loosen. Actionable negligence requires that Loosen's purported failure to inform Mr. Lockhart of her contagion be the direct cause of the plaintiff's injury--i.e., the contraction of herpes. While normally Loosen would owe no duty of care to the wife, a third party, every person is under a duty to exercise due care in using that which he/she controls so as not to injure another. 25 If Loosen knew or should reasonably have known that she had...
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