De Milio v. Schrager

Citation666 A.2d 627,285 N.J.Super. 183
PartiesCarmen De MILIO and Denise De Milio, husband and wife, Plaintiffs, v. Dr. Philip SCHRAGER, John Does 1-4, Fictitious Names for Persons and/or Entities Unknown, Defendants.
Decision Date14 July 1995
CourtSuperior Court of New Jersey

William J. Shipers, New Brunswick, for plaintiff (Shamy, Shipers & Lonski, attorneys).

Alan J. Baratz, Parsippany, for defendant (Weiner Lesniak, attorneys).



In a case of first impression, this court is being asked to resolve a two-fold question: (1) whether a plaintiff can recover damages for negligent infliction of emotional distress, based on the fear of developing acquired immune deficiency syndrome (AIDS); and (2) if so, whether such fear is unreasonable as a matter of law absent proof of actual exposure to the human immunodeficiency virus (HIV).

I conclude that a plaintiff may recover for emotional distress arising out of a fear of AIDS only where there exists proof of actual exposure to the AIDS virus and where a scientifically acknowledged channel of transmission has been articulated; but where there exists proof that a defendant's wrongful conduct was either intentional or recklessly indifferent, a rebuttable presumption of exposure will arise, enabling plaintiff to survive a motion for summary judgment.

On or about September 15, 1989, Carmen De Milio was stuck in the forearm by a dental instrument while collecting trash from Dr. Philip Schrager's North Brunswick office. One of plaintiff's co-workers extracted the deeply embedded instrument from Mr. De Milio's arm and threw it into the "hopper" of their garbage truck. The State Department of Environmental Protection was thereafter notified and an investigation, conducted by the Division of Waste Management, ensued. The Division's investigation confirmed that the defendant had, in addition to dental probes and other instruments, sought to discard other categories of medical waste, including extracted teeth, blood stained gauze and towels, and bloody by-products. Consequently, Dr. Schrager was issued three separate violation notices 1 essentially charging him with improper disposal of medical waste.

In addition to the physical injury caused by the probe, plaintiff seeks compensation for the severe emotional stress allegedly caused by his fear of contracting AIDS in the future.


AIDS has become the recurrent theme fueling our worst nightmares. 2 The disease is known to be fatal in 100 percent of cases has no known cure, and is spreading at a horrifying rate, having "increased more than 100-fold since [it] was discovered in 1981." Marsha F. Goldsmith, "Critical Moment" at Hand in HIV/AIDS Pandemic, New Global Strategy to Arrest its Spread Proposed, 268 JAMA 445 (1992).

Individuals with AIDS are often subjected to severe social stigma. Consequently, it is not surprising that panic over the spread of HIV/AIDS in the United States has burgeoned into an influx of emotional distress claims based on the fear of contracting AIDS, (Stephanie B. Goldberg, AIDS Phobia: Reasonable Fears or Unreasonable Lawsuits?, A.B.A.J., June 1992, at 88), both by those who were actually exposed to the HIV virus, and those who were potentially or theoretically exposed. See Marriott v. Sedco Forex Int'l Resources, Ltd., 827 F.Supp. 59, 74-75 (D.Mass.1993).

In the present case, although plaintiff could theoretically have contracted the virus by the puncture 3, he has, fortunately, repeatedly tested negative over a period now extending some five years.


To state a cause of action in negligence, a plaintiff must allege that the defendant had a duty of care which it breached, and that the breach proximately caused legally cognizable injury. Caputzal v. The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966). Applying this general analysis to cases involving negligent infliction of emotional distress, our Supreme Court has concluded: "[L]iability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted, thus then bringing the plaintiff within the 'zone of risk'." Id. at 76, 222 A.2d at 517 (quoting 2 F. Harper & F. James, The Law of Torts, § 18.4 at 1036 (1956)). 4

The concept of legal duty emanates from the responsibility each person bears to exercise due care to avoid unreasonable risks of harm to others. Carter Lincoln-Mercury, Inc., Leasing Division v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288, 1294 (1994). Generally, this would include a duty not to expose others to a disease. 5 See Hofmann v. Blackmon, 241 So.2d 752, 753 (Fla.Dist.Ct.App.1970), cert. denied sub nom., Blackmon v. Hofmann, 245 So.2d 257 (Fla.1971).

The question of whether a duty exists is one of fairness and policy that essentially "involves identifying, weighing, and balancing several factors--the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110, 1116 (1993).

If there is some probability of harm sufficiently serious that a reasonable person would take precautions to avoid it, then failure to do so is negligence. The test is not the balance of probabilities, but of the existence of some probability of sufficient magnitude to induce action to avoid it on the part of a reasonable mind.

In the instant case, Dr. Schrager's conscious decision to circumvent regulatory requirements regarding the disposal of medical waste materials is, of course, a critical factor. 6 These (and other) Department regulations were specifically designed to protect an identifiable class of persons who were reasonably and foreseeably at risk from an improper disposition of medical waste. Thus, they impose an affirmative duty upon defendant to protect persons such as plaintiff. 7

In order to resolve whether defendant's tortious conduct proximately and reasonably caused plaintiff to develop a "fear-of-AIDS" syndrome, I must determine when the fear-of-AIDS becomes a legally cognizable injury. In fear-of-AIDS cases, the proximate cause inquiry to date has focused upon whether the plaintiff's fear is reasonable, see, Faya v. Almaraz, 329 Md. 435, 620 A.2d 327, 337 (1993); Wetherill v. University of Chicago, 565 F.Supp. 1553, 1559 (N.D.Ill.1983); Johnson v. West Virginia Univ. Hosps., Inc., 413 S.E.2d 889, 894 (W.Va.1991), since a defendant will not be held liable where a plaintiff's fear is unreasonable. 8 Predictably, no consistent and reliable standard has evolved by which one can determine whether an individual's fear-of-AIDS is "reasonable." Sister jurisdictions are sharply divided on their approaches.

The decisions appear to fall within several broad categories: (1) where a channel of transmission exists, but no proof of exposure to the virus; (2) proof of exposure, but no scientifically recognized channel of transmission; and (3) proof of exposure to the virus and an acknowledged channel of transmission. See Vallery v. Southern Baptist Hospital, 630 So.2d 861, 866-67 (La.Ct.App.1993) writ denied, 634 So.2d 860 (La.1994); see, Gary J. Spahn & Timothy S. Baird, Closing the Floodgates on Fear of AIDS Claims, Vol. 37, No. 6 For The Defense 8, 9 (June, 1995).

Several courts have required plaintiff to prove actual exposure to the disease as a prerequisite to establishing the reasonableness of the fear, as a matter of law. For instance, in Burk v. Sage Products, Inc., 747 F.Supp. 285 (E.D.Pa.1990), a paramedic pricked his finger on a needle protruding from a container used to dispose of used syringes. He brought an action against the manufacturer of the container for emotional damages based on his fear of contracting AIDS. The United States District Court granted summary judgment in favor of the defendant, precluding recovery as a matter of law, absent proof that the needle which had stuck his finger had actually been used on an AIDS patient. Id. at 288.

Similarly, in Carroll v. Sisters of Saint Francis Health Services, Inc., 868 S.W.2d 585 (Tenn.1993), the plaintiff had been pricked by a needle while visiting her sister in the hospital. The Supreme Court of Tennessee adopted the "actual exposure" approach as well, holding that "[i]n order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV." Id. at 594.

Likewise, in Funeral Services by Gregory, Inc., v. Bluefield Community Hospital, 186 W.Va. 424, 413 S.E.2d 79 (1991), the Supreme Court of Appeals denied recovery for a mortician who had embalmed an AIDS-infected corpse, where he had worn proper protective gear and had not alleged any avenue of exposure. 9 The court held that the fear of contracting AIDS, in absence of an actual exposure to the virus, is unreasonable, and would not be recognized as a legally compensable injury. Id. 413 S.E.2d at 84. 10 Employing the same rationale, the Minnesota Supreme Court reinstated a summary judgment in favor of a defendant health care provider, dismissing plaintiff's fear of AIDS claim, where an HIV-infected physician had worn gloves, precluding actual exposure to the virus. K.A.C. v. Benson, 527 N.W.2d 553 (Minn.1995).

In Kerins v. Hartley, 27 Cal.App.4th 1062, 33 Cal.Rptr.2d 172 (Cal.Ct.App.1994) (Kerins II ), an intermediate court of appeal denied recovery to a patient who had been operated on by an AIDS-infected doctor. 11 Relying on Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993) (denying emotional distress recovery for fear of cancer unless developing the disease, after exposure, is probable), Kerins II held "emotional distress damages due to fear of AIDS [are] legally noncompensable unless the plaintiff alleges and proves actual exposure, and it is more probable than not that the plaintiff will actually...

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