Malena v. MARRIOTT INTERN., INC.

• Decision Date: 11 October 2002
• Docket Number: No. S-00-1285.,S-00-1285.
• Citation: 264 Neb. 759,651 N.W.2d 850
• Parties: Daryl E. MALENA and Audrey A. Malena, husband and wife, Appellees, v. MARRIOTT INTERNATIONAL, INC., a Delaware corporation, Appellant.
• Court: Nebraska Supreme Court

651 N.W.2d 850

264 Neb. 759

Daryl E. MALENA and Audrey A. Malena, husband and wife, Appellees, v. MARRIOTT INTERNATIONAL, INC., a Delaware corporation, Appellant.

No. S-00-1285.

Supreme Court of Nebraska.

October 11, 2002.

Melvin C. Hansen, Omaha, Judith A. Wolf, Kearney, and William Gilner for appellant.

James S. Mitchell, Kathryn J. Derr, and Clifford T. Lee, of Rasmussen & Mitchell, Omaha, for appellees.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

Marriott International, Inc. (Marriott), appeals from a jury verdict in favor of the appellees, Daryl E. Malena and Audrey A. Malena, husband and wife, for damages sustained when Audrey was stuck by a needle in a California hotel room. Marriott contends that the district court erred in refusing to instruct the jury on California law concerning Audrey's damages for fear of testing positive for human immunodeficiency virus (HIV) and contracting acquired immunodeficiency syndrome (AIDS). We agree that there is a difference between Nebraska and California law and that California law should have been applied. Accordingly, we reverse, and remand for a new trial.

BACKGROUND

On September 22, 1994, the Malenas, who are residents of Nebraska, stayed at the San Francisco Marriott Hotel in California. While in the hotel room, Audrey placed the cap of a lotion bottle on the nightstand and it rolled off. Audrey reached under the nightstand, attempting to retrieve the cap, and felt a sharp jab in her hand. Audrey pulled her hand out from under the nightstand and saw a hypodermic needle and syringe stuck in her hand. The needle was through her skin and into the muscle. She also felt a cold tingling sensation moving up her arm.

Immediately after the incident, Daryl called several AIDS hotline numbers. Because of the information he received, Audrey went the next morning to a medical center in San Francisco, where she was treated. The Malenas then returned to Nebraska, and Audrey saw her personal physician and an infectious disease specialist. Between September 1994 and February 1996, she underwent a series of blood tests to determine the presence of HIV, hepatitis antibodies, and syphilis. The results of the tests were negative. The needle and syringe were not tested. At the time of the incident, the Malenas' daughter Rachel was ill with myelofibrosis, a disease of the bone marrow, and had previously received a bone marrow transplant from her sister to treat the illness. Because of the transplant, Rachel required blood platelet donations, which were more effective if she received them from her immediate family. From January 1994 until the incident in September, Audrey had donated platelets at least seven times. After the incident, Audrey was unable to donate platelets because of her potential exposure to HIV and other diseases. Rachel died in December 1994 from complications related to her disease. Before Audrey was stuck by the needle, she had been treated for depression and anxiety related to Rachel's illness.

The Malenas filed suit against Marriott alleging that Marriott was negligent in failing to protect them from dangerous conditions on the hotel premises caused by its failure to discover and remove the hypodermic needle and syringe. They alleged special damages in the amount of $641.30 for Audrey's medical expenses. They further sought damages for Audrey's mental suffering because of her fear of contracting AIDS or hepatitis and for emotional distress for her inability to donate blood platelets. They also sought damages for Daryl's loss of companionship and consortium.

Marriott generally denied the allegations. Marriott moved for summary judgment alleging that the case was governed by the substantive law of California and that under California law, the Malenas were precluded from recovery. The motion was denied.

At trial, the district court determined that any damages attributable to Audrey's fear of contracting AIDS were controlled by Nebraska law. Marriott's requests for jury instructions on California law were denied. The jury found for the Malenas and awarded Audrey $200,000 in damages. Daryl was awarded $17,500 in damages. Marriott appeals.

ASSIGNMENTS OF ERROR

Marriott assigns, rephrased, that the district court erred in (1) failing to instruct the jury on the substantive law of California regarding fear of AIDS and parasitic damages, (2) refusing a requested instruction about whether Audrey's fear of infection was reasonable and genuine under Nebraska law, and (3) admitting certain exhibits into evidence.

STANDARD OF REVIEW

In a personal injury action, the question of whether to apply the law of the state where the injury occurred or the law of another state is a question of law. See Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999).

To establish reversible error from a trial court's refusal to give a requested instruction, an appellant must prove that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697, 625 N.W.2d 213 (2001). Whether a jury instruction given by a trial court is correct is a question of law. Smith v. Fire Ins. Exch. of Los Angeles, 261 Neb. 857, 626 N.W.2d 534 (2001).

An appellate court decides a question of law independently of the conclusion reached by the trial court. Id.

ANALYSIS

Marriott contends that the jury should have been instructed on California law concerning parasitic damages for fear of contracting a disease. Marriott argues that under California law, Audrey cannot recover for fear of contracting a disease unless it is more likely than not that she will contract AIDS from her exposure to a substance in the needle. The Malenas contend that California and Nebraska laws do not conflict. In the alternative, they contend that Nebraska law should apply.

DIFFERENCE BETWEEN NEBRASKA AND CALIFORNIA LAW

We first address the difference between Nebraska law and California law on the proof necessary to recover parasitic damages for fear of developing a future disease. "[B]efore entangling itself in messy issues of conflict of laws a court ought to satisfy itself that there actually is a difference between the relevant laws of the different states." Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 197 (7th Cir.1992). Parasitic damages are damages occasioned by anxiety specifically from a reasonable fear of a future harm attributable to a physical injury caused by the defendant's negligence. Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998).

In Hartwig, we addressed whether a plaintiff who sustains an injury such as a needle stick can recover parasitic damages for anxiety and mental suffering caused by fear of contracting AIDS without showing actual exposure to infected body fluids. In addressing the issue, we cited and discussed cases from other jurisdictions, including California, that require proof of actual exposure to infected body fluids before parasitic damages can be recovered. In particular, we noted that under California law:

[A]n ordinary needle stick does not give rise to parasitic damages for emotional distress and mental suffering unless a hazardous foreign substance is introduced into the body through the needle and causes detrimental changes to the body. Absent such detrimental change, in order to recover damages for a fear of contracting an illness, the plaintiff's fear must result from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop such illness in the future due to the exposure.

Id. at 786, 580 N.W.2d at 92, citing Macy's Cal., Inc. v. Superior Court, 41 Cal. App.4th 744, 48 Cal.Rptr.2d 496 (1995).

Noting that modern medicine treats a potential exposure the same as an actual exposure, we disagreed with the rule adopted by jurisdictions such as California. We adopted a different rule. Instead of requiring proof of actual exposure, we held:

[A] plaintiff may adduce proof and potentially recover damages for the mental anguish of reasonably fearing AIDS resulting from a physical injury when the plaintiff may have been exposed, via a medically sufficient channel of transmission, to the tissue, blood, or body fluid of another in circumstances where the identity of the patient upon whom the contaminated needle or instrument was used is unknown, and when it is impossible or impracticable to ascertain whether any such tissue, blood, or body fluid may be HIV positive.

Hartwig, 254 Neb. at 790-91, 580 N.W.2d at 94.

We then held that when the elements are met, a plaintiff may adduce proof of, and potentially recover, parasitic damages for the "`window of anxiety'" during which the plaintiff's fear of HIV infection and contraction of AIDS was reasonable and genuine and resulted in mental suffering occasioned by a physical injury for which he or she could receive compensation. Id. at 791, 580 N.W.2d at 94. California has specifically rejected the test that we adopted in Hartwig. In Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 863 P.2d 795, 25 Cal.Rptr.2d 550 (1993), a case involving exposure to toxic substances and fear of developing cancer, the California Supreme Court discussed concerns about the speculative nature of damages for fear of developing an illness based merely on exposure or a significant increase of the risk that the illness would develop. The court was particularly concerned about the possibility of an increase in unreasonable claims and the effect on society of an increase in the number of lawsuits. As a result, the court limited the availability of a plaintiff to recover. The court held that where there is an absence of present physical injury or illness, parasitic damages for fear of developing...