Reynolds v. Highland Manor, Inc.

• Citation: 954 P.2d 11,24 Kan.App.2d 859
• Decision Date: 13 February 1998
• Docket Number: No. 77812,77812
• Parties: Angelina REYNOLDS, Appellant, v. HIGHLAND MANOR, INC., Appellee.
• Court: Court of Appeals of Kansas

Page 11

954 P.2d 11

24 Kan.App.2d 859

Angelina REYNOLDS, Appellant, v. HIGHLAND MANOR, INC., Appellee.

No. 77812.

Court of Appeals of Kansas.

Feb. 13, 1998.

Syllabus by the Court

1. The grounds necessary to establish a claim for negligent infliction of emotional distress in Kansas are reviewed.

2. Among the requirements to establish a cause of action for negligent infliction of emotional distress based on the fear of contracting AIDS it must be shown there was actual exposure to HIV.

Jerry K. Levy and Ronald L. Schneider, Lawrence, for appellant.

John David Jurcyk and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., Lenexa, for appellee.

Before PIERRON, P.J., and GREEN, J., and GENE B. PENLAND, District Judge Retired, Assigned.

GENE B. PENLAND, District Judge Retired, Assigned.

Plaintiff, Angelina Reynolds, filed suit for negligent infliction of emotional distress against defendant, Highland Manor, Inc., the owner of a Holiday Inn located in Great Bend. Plaintiff alleged that in May 1995, she accidentally picked up a used condom left in her motel room. Plaintiff claimed that as a result of defendant's negligence, she suffered emotional distress due to her fear of contracting AIDS. The district court granted defendant's motion for summary judgment. We agree with the district court and affirm.

In May 1995, plaintiff and her family checked into the Holiday Inn in Great Bend. Within a few hours of checking in, they requested a room change because the air conditioner in their room was not working, and plaintiff began packing their luggage. As she felt for items left under the bed, her left hand came across what she thought was a candy wrapper. Plaintiff retrieved the item, which turned out to be a condom. She screamed, dropped the prophylactic on the floor, and ran to the bathroom to wash her hands. She claimed the condom was wet and she felt a "gush" in her hand when she squeezed it. A motel employee heard plaintiff scream and walked into the room at about the time plaintiff dropped the condom to the floor. The employee found a second condom under the bed.

Plaintiff and her husband, Marty, rushed to a local hospital emergency room. They took the two condoms with them, but hospital staff informed them they could not test the contents of the condoms. Plaintiff saw a physician, who examined her hand. At the time of the incident, she had a burn on the middle finger of her left hand and bloody cuticles, but she did not know if the contents of the condom had come into contact with these areas. According to plaintiff, the doctor told her there was nothing he could do if she had already been exposed to any infectious diseases.

Plaintiff submitted to periodic testing for HIV, the virus that causes AIDS, in June 1995, August 1995, November 1995, and June 1996. Each test result was negative. Plaintiff continued to keep the condoms in her freezer at the advice of her attorney, but the condoms and their contents have not been tested.

Months after the incident, plaintiff filed a negligence suit against defendant, claiming she had suffered significant physical and emotional injury due to the negligence of the defendant which caused her to come into contact with a used condom. She also claimed a loss of consortium, seeking $1,000,000 in damages.

The trial court granted defendant's motion for summary judgment on three grounds: (1) Plaintiff failed to demonstrate a physical injury; (2) plaintiff failed to demonstrate a reasonable fear of contracting a disease in the future; and (3) plaintiff failed to demonstrate that she had been exposed to HIV.

This appeal involves a challenge to the district court's grant of summary judgment to the defendants. The Supreme Court discussed the standard of review for motions for summary judgment in Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995):

"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]"

To sustain a claim for negligent infliction of emotional distress, the plaintiff must establish that the conduct complained of was accompanied by, or resulted in, immediate physical injury. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, Syl. p 1, 662 P.2d 1214 (1983). A plaintiff "must show that the physical injuries complained of were the direct and proximate result of the emotional distress caused by the [defendant's] alleged negligent conduct. [Citation omitted.] Furthermore, it is a fundamental principle of law that recovery may be had only where it is shown with reasonable certainty that damage was suffered and that such damage resulted from the act or omission of which complaint is made." 233 Kan. at 277, 662 P.2d 1214. The purpose behind the physical injury requirement is to prevent plaintiffs from recovering for emotional distress that is feigned or counterfeit. Laughinghouse v. Risser, 786 F.Supp. 920, 929 (D.Kan.1992). "Also, emotional distress is a common experience of life and is usually trivial. Therefore, the courts limit recovery to cases involving severe emotional distress which is evidenced and substantiated by actual physical injury." Freeman v. Kansas State Network Inc., 719 F.Supp. 995, 1001 (D.Kan.1989); see Hoard, 233 Kan. at 274, 662 P.2d 1214.

The district court correctly entered summary judgment for defendant because of plaintiff's failure to demonstrate physical injury. First, plaintiff only offered evidence of general symptoms, which do not amount to physical injury under Kansas law. Second, the evidence failed to establish a direct and proximate connection to the injuries complained of and the conduct alleged.

Plaintiff testified that after the incident, she feared she would die from AIDS. As a result of this anxiety, she claimed to have suffered headaches, diarrhea, and nausea. She could not say that she ever vomited and conceded that one type of medication she took caused her digestive problems. Plaintiff also testified to crying and shaking, and feeling overwhelmed with stress. Dr. Elias Chediak, the psychiatrist who treated plaintiff following the incident, testified that most of the time he saw her, "she was feeling pretty anxious, crying, feeling distressed," and she reported headaches and tense muscles. Dr. Chediak stated plaintiff had seen a neurologist who performed tests that turned out negative. According to Dr. Chediak, the neurologist concluded that any problems plaintiff had experienced were due to stress. Plaintiff also testified that because of her mental state, her sexual relations with her husband had decreased, but they continued to have unprotected sex after the incident, despite her purported fear she might have HIV.

Physical symptoms of emotional distress such as headaches, insomnia, and general physical upset are insufficient to state a cause of action. Hopkins v. State, 237 Kan. 601, 612-13, 702 P.2d 311 (1985); see also Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988) (Plaintiff suffered shock, emotional pain, feelings of guilt, nightmares, and depression. The court found the symptoms were insufficient to establish physical injury.).

No physical injury appears in the record. During his deposition, Marty Reynolds was asked: "You've told me about her crying, and I think your words were 'she's a basket case and mean, scared, mental midget, upset, out of it.' Have you observed any physical, anything physical about that--those things you described?" Mr. Reynolds responded, "No." When asked, "[h]as she ever complained to you about any physical complaints that she attributes to the incident in May of '95?", Mr. Reynolds responded, "I don't think so." In fact, when asked, "Are you claiming any physical injuries as a result of this incident at the Holiday Inn in Great Bend in May of '95?", the plaintiff responded, "You would have to ask my attorney. Not that I know." The record simply contains no evidence of physical injury sufficient to sustain a claim for negligent infliction of emotional distress.

Plaintiff's claim fails for another reason. She could not demonstrate that her contact with the condom directly and proximately caused her emotional distress and alleged injuries. Plaintiff testified she had suffered a nervous breakdown in June 1995, which forced her to be hospitalized. She claimed her mental condition did not significantly improve over time. The record reveals, however, the occurrence of several events in plaintiff's life that likely affected her mental condition in combination with, or apart from, the incident in Great Bend. For example, Mr. Reynolds remained jobless throughout 1995 due to a back injury. Also, plaintiff suffered from persistent leg pain resulting from a groin injury. She received treatment for a blood clot in her leg during her June 1995 hospital stay. While she claimed her anxiety over the condom incident prevented her from enjoying her hobbies of gardening and horseback riding, plaintiff admitted she could not engage in these activities because of problems with her leg.

When asked if anything made her condition worsen after her...