Long v. Adams

• Decision Date: 08 July 1985
• Docket Number: 70060,Nos. 70059,s. 70059
• Citation: 175 Ga.App. 538,333 S.E.2d 852
• Parties: LONG v. ADAMS; ADAMS v. LONG.
• Court: Georgia Court of Appeals

Page 852

333 S.E.2d 852

175 Ga.App. 538

LONG v. ADAMS;

ADAMS v. LONG.

Nos. 70059, 70060.

Court of Appeals of Georgia.

July 8, 1985.

Rehearing Denied July 23, 1985.

Certiorari Denied Sept. 12, 1985 (in 70059).

Michael L. Marsh, Marietta, Samuel D. Hicks, Atlanta, for appellant.

Michael J. Kramer, Marietta, for appellee.

BENHAM, Judge.

Between 1982 and 1983, plaintiff/appellant Long and defendant/appellee Adams, both unmarried residents of Cobb County, Georgia, were involved in an intimate sexual relationship, in the course of which appellant allegedly contracted genital herpes from appellee. In 1984, appellant filed a tort action against his paramour, claiming that she negligently and intentionally infected him with the disease and was therefore liable to him for the resulting injury. Appellant alleged that appellee's actions constituted negligence, battery, and intentional infliction of emotional distress, thus entitling him to special and punitive damages.

At the time the suit was filed, appellee resided in Oklahoma, and she was served with process pursuant to Georgia's Long Arm Statute (OCGA § 9-10-91(2)). Appellee's answer asserted, inter alia, that the court lacked personal jurisdiction over her and that the complaint failed to state a claim upon which relief could be granted. Responding to her motion to dismiss/motion for summary judgment, the trial court ruled that personal jurisdiction did exist but that the complaint failed to state a claim upon which relief could be granted, and granted appellee's summary judgment motion. Plaintiff/appellant Long appeals from the adverse judgment; defendant/appellee Adams cross-appeals from the finding of personal jurisdiction. Having consolidated the two appeals, we reverse the grant of summary judgment and affirm the finding of personal jurisdiction.

1. Appellee contends that the trial court could not exercise jurisdiction over her because she, as a nonresident of Georgia, did not have the requisite contact with the forum state. OCGA § 9-10-91; Shellenberger v. Tanner, 138 Ga.App. 399, 227 S.E.2d 266 (1976). She also argues that in light of the trial court's ruling that appellant had no cause of action, personal jurisdiction was a legal impossibility. In Division 2 of this opinion, we will address whether or not a cause of action exists; however, at this juncture, we need only say that it does exist, thus negating appellee's latter contention. As for the former, the record indicates that during the time period in which the alleged tortious conduct took place, appellee was a resident of Cobb County, Georgia, where the suit was filed. Under those circumstances, the trial court was authorized to exercise personal jurisdiction over appellee pursuant to OCGA § 9-10-91 in spite of her nonresident status at the time suit was filed. Davis v. Peoples Bank of St. Marys, 168 Ga.App. 383(1), 308 S.E.2d 871 (1983).

2. Appellant enumerates as error the trial court's grant of summary judgment against him and its finding that he failed to state a cause of action. The question whether or not an unmarried person who contracts genital herpes from his unmarried sexual partner can sue for damages under a negligence theory being one of first impression in this state, we examined the relevant case law in other jurisdictions for guidance. In Duke v. Housen, 589 P.2d 334 (Sup.Ct.Wy.) (1979), plaintiff/appellee Housen alleged gross negligence on the part of her sexual partner for infecting her with gonorrhea. The trial court rendered judgment in her favor after a jury trial, but the Wyoming Supreme Court reversed, finding that the statute of limitation had run before the action was filed. The court made it clear, however, that the cause of action was a valid one.

"At the very foundation of plaintiff's claim against defendant lie the principles of the law of tort. One who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actions. [Cits.]" Id. at 340. The court went on to set out the necessary elements of an action founded on negligence as being: (1) a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure on his part to conform to the standard required; (3) a reasonable close causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting to the interests of another. Id. at 334, 341.

To maintain a cause of action based on negligence in Georgia, a plaintiff must allege these same elements. Lee St. Auto Sales v. Warren, 102 Ga.App. 345(1), 116 S.E.2d 243 (1960). Therefore, these elements will be examined individually within the context of this case.

First, what legal duty, if any, is owed by one sexually active person to another? The duty owed is the same one that every individual in this state owes another: the duty to exercise ordinary care not to injure others. Having established that standard of care to which appellee was required to conform, we move to the second element--failure to conform to the standard. Appellant alleged that appellee intentionally and negligently had sexual intercourse with him at times when she knew she was infected with genital herpes, a contagious venereal disease, and that he was not informed of her condition at the time the acts occurred. Since the record before us does not contain any sworn testimony to refute the allegations (although the existence of a deposition is alluded to), the trial court was required to regard the allegations in the light most favorable to the appellant, with all doubts resolved in his favor, on the appellee's motion to dismiss. Harper v. DeFreitas, 117 Ga.App. 236, 160 S.E.2d 260 (1968). Examining the complaint in that light, it can be said that appellee may not have conformed to the required standard of care. What amounts to the exercise of ordinary care under the circumstances is a jury question. Hand v. Harrison, 99 Ga.App. 429(3), 108 S.E.2d 814 (1959). There being no evidence that absolutely resolved the issue, we conclude that the second element of an actionable negligence claim exists.

The penultimate element, a close causal connection between appellee's conduct and appellant's injury, is established. It is commonly known that herpes is a contagious and incurable disease, transmitted primarily by intimate sexual contact, although, as we will discuss later, appellee argues otherwise. Nowhere in the record does appellee assert that she did not have genital herpes during the period of her relationship with appellant. Rather, she argues that she was not obligated to disclose her condition to him. Since it is undisputed that appellee had the disease during the time in question, engaged in sexual intercourse with appellant, did not disclose her condition to him, and that he later contracted the disease, we can conclude that a causal connection existed between her conduct and his injury. We can also dispose of the last element, recognizing that appellant has suffered damage by being afflicted with an incurable disease.

In light of the foregoing analysis, we conclude that appellant stated a cause of action based on negligence. Since it does not appear to a certainty that appellant would not be entitled to relief under any state of facts which could be proved in support of his claim, appellee's motion to dismiss should not have been granted. Harper, supra. Nor should summary judgment have been granted, since there was no plain, palpable, and indisputable evidence in favor of either party. Manheim Services Corp. v. Connell, 153 Ga.App. 533, 265 S.E.2d 862 (1980).

It should be made clear that this court is not stating here that...