Roes v. FHP, Inc.

• Decision Date: 06 October 1999
• Docket Number: No. 21504.,21504.
• Citation: 91 Haw. 470,985 P.2d 661
• Court: Hawaii Supreme Court
• Parties: JOHN & JANE ROES, 1-100, Plaintiffs-Appellants, v. FHP, INC., a foreign corporation, dba FHP Health Care, a Health Maintenance Organization, aka Family Health International Express, a foreign corporation, TNT Skypak, Inc., a foreign corporation, Pan Oceania Air Express, a foreign corporation, Continental Micronesia, Inc., a foreign corporation, John Does 1-100, Jane Does 1-100, Doe Corporations 1-100, Doe Partnerships 1100, Doe Governmental Entities 1-100, Doe Joint Ventures 1-100, and Other Doe Entities 1-100, Defendants-Appellees.

985 P.2d 661

91 Haw. 470

JOHN & JANE ROES, 1-100, Plaintiffs-Appellants, v. FHP, INC., a foreign corporation, dba FHP Health Care, a Health Maintenance Organization, aka Family Health International Express, a foreign corporation, TNT Skypak, Inc., a foreign corporation, Pan Oceania Air Express, a foreign corporation, Continental Micronesia, Inc., a foreign corporation, John Does 1-100, Jane Does 1-100, Doe Corporations 1-100, Doe Partnerships 1100, Doe Governmental Entities 1-100, Doe Joint Ventures 1-100, and Other Doe Entities 1-100, Defendants-Appellees.

No. 21504.

Supreme Court of Hawai`i.

October 6, 1999.

Robert D. Kawamura, Honolulu, and Lonomaikalani P.V. Beamer, on the briefs, for the plaintiffs-appellants John and Jane Roes 1-100

Burnham H. Greeley and Frank P. Richardson, Honolulu (of counsel, Greeley Walker & Kowen), on the briefs, for the defendant-appellee FHP, Inc.

Dean H. Robb and Steven M. Egesdal, Honolulu (of Carlsmith Ball Wichman Case & Ichiki), on the briefs, for the defendant-appellee Pan Oceania Air Express, joined in the brief of the defendant-appellee FHP, Inc.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by LEVINSON, J.

The plaintiffs-appellants John & Jane Roes 1-100 (hereinafter "plaintiffs") filed an action in the United States District Court for the District of Hawai`i, alleging, inter alia, (1) negligence and (2) intentional or negligent infliction of emotional distress. In December 1997, the plaintiffs and the defendant-appellee Continental Micronesia, Inc. ("Continental") filed cross-motions for partial summary judgment, and the defendant-appellee FHP, Inc. ("FHP") filed a cross-motion for summary judgment. On February 23, 1998, the federal district court conducted a consolidated hearing on the motions.<sup>1</sup> The court determined that, because the matter presented novel issues of state law, the following questions should, pursuant to Hawai`i Revised Statutes (HRS) § 602-5(2) (1993),² be certified to this court:

A. Whether the courts in the State of Hawai[`]i should recognize a cause of action based upon fear of developing [acquired immune deficiency syndrome (]AIDS[) ], if an individual can prove exposure to [human immunodeficiency virus (]HIV[)-]positive blood?

B. If such a cause of action exists, can damages be solely based upon emotional distress, or must the plaintiff demonstrate an underlying physical injury, separate and apart from the emotional distress?

We accepted certification. It appears that the pertinent claim for relief implicated by the facts of the present matter is negligent infliction of emotional distress (NIED).³ Accordingly, we answer the certified questions as follows: (1) Hawai`i law recognizes a cause of action for NIED arising out of a fear of developing AIDS following exposure to HIV-positive blood resulting in actual physical peril to the claimant; and (2) damages may be based solely upon serious emotional distress, even absent proof of a predicate physical injury.

I. BACKGROUND

The plaintiffs were baggage handlers employed by Signature Support Flight Service, doing business at the Honolulu International Airport. On or about May 21, 1996, the plaintiffs were unloading baggage from Continental Flight C0906, originating from Guam. Roe 1 moved a bag that, unbeknownst to him, contained a specimen of blood tainted with HIV.⁴ The blood was being transported for testing from FHP's facilities on Guam to a laboratory in Honolulu. When he moved the bag, Roe 1 noticed that his hands were wet with blood from the specimen. Two coworkers, Roes 2 and 3, assisted in the cleanup of the specimen and came into contact with the tainted blood. The plaintiffs assert that, at the time of the incident, they were suffering from open wounds on their hands. Each of the plaintiffs subsequently tested negative for HIV.

On March 3, 1997, the plaintiffs filed this action in the circuit court of the first circuit, State of Hawai`i. FHP filed a notice of removal to the United States District Court for the District of Hawai`i. On March 6, 1997, the plaintiffs filed an amended complaint in the federal district court, alleging, inter alia, (1) negligence, (2) negligence based upon respondeat superior, (3) failure to warn, (4) negligent failure to advise that the subject specimen was infectious and/or hazardous, (5) negligent failure to label the package containing the infectious specimen, (6) negligent entrustment of infectious material to a courier for packing and transportation, (7) negligent management, (8) "negligent/lack of proper training/education/supervision regarding the handling of infectious materials," (9) "negligent/lack of enforcement of IATA shipping guidelines/ guidelines for diagnostic specimens/OSHA rules/laws/procedures," (10) negligent failure to provide protective gloves, (11) negligence by omission, (12) negligent shipping, (13) misrepresentation, (14) intentional/negligent infliction of emotional distress, and (15) loss of consortium. Essentially, the plaintiffs contended that they suffered from "AIDS phobia," inasmuch as they claimed damages arising out of the emotional distress that each of them experienced as a result of being negligently exposed to HIV.

II. STANDARD OF REVIEW

The issue presented by the certified question—whether, and to what extent, Hawai`i recognizes a claim for relief based on a fear of developing AIDS—is a question of law. "Questions of law are reviewable de novo under the right/wrong standard of review." Francis v. Lee Enters., Inc., 89 Hawai`i 234, 236, 971 P.2d 707, 709 (1999) (quoting Best Place, Inc. v. Penn America Ins. Co., 82 Hawai`i 120, 123, 920 P.2d 334, 337 (1996) (citation omitted)).

III. DISCUSSION

A. A Plaintiff May Assert A Claim For Relief For NIED In Hawai`i, By Virtue Of Negligent Exposure To HIV, Without Demonstrating A Predicate Harm.

This court first recognized the independent tort of negligent infliction of "mental" distress in Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). In Rodrigues, the plaintiffs alleged emotional distress caused by the state having negligently caused extensive flood damage to their home. We acknowledged that, theretofore, the traditional rule had been that "that there [was] no recovery for the negligent infliction of mental distress alone." 52 Haw. at 169, 472 P.2d at 518 (citations omitted). We then rejected the traditional rule, announcing that "the preferable approach is to adopt general standards to test the genuineness and seriousness of mental distress in any particular case" and holding that "serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." Id. at 171, 173, 472 P.2d at 519-20. Thus, Hawai`i "became the first jurisdiction to allow recovery [for NIED] without a showing of physically manifested harm" to the plaintiff. Campbell v. Animal Quarantine Station, 63 Haw. 557, 560, 632 P.2d 1066, 1068 (1981).

In Rodrigues, we further recognized that, inasmuch as "the interest in freedom from negligent infliction of serious mental distress is entitled to independent legal protection[,]... there is a duty to refrain from the negligent infliction of serious mental distress." Id. at 174, 472 P.2d at 520. We also noted that a limitation on the right of recovery in such cases, "as in all negligence cases, is that the defendant's obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous." Id. at 174, 472 P.2d at 521.

Our first opportunity to apply the principles articulated in Rodrigues arose in Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974). In Leong, we declared that recovery was potentially available for NIED where a ten-year-old boy witnessed the death of his stepgrandmother. We noted that "this court has not hesitated to grant negligently-inflicted mental distress [—] unaccompanied by resulting physical injuries [—] independent legal protection." Id. at 403, 520 P.2d at 762. We therefore held that,

when it is reasonably foreseeable that a reasonable plaintiff-witness to an accident would not be able to cope with the mental stress engendered by such circumstances, the trial court should conclude that defendant's conduct is the [legal] cause of plaintiff's injury and impose liability on the defendant for any damages arising from the consequences of his negligent act.

Id. at 410, 520 P.2d at 765.

This court has noted that "physical injury rules have been criticized as inadequate methods of distinguishing between worthy and unworthy claims."⁵ Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 40, 837 P.2d 1273, 1293 (1992). Accordingly, we have held several times that recovery for NIED is permitted without a showing of physically manifested harm to the plaintiff. See, e.g., Masaki v. General Motors Corp., 71 Haw. 1, 18, 780 P.2d 566, 576 (1989)

; Campbell, 63 Haw. at 560,

632 P.2d at 1068; Leong, 55 Haw. at 407,

520 P.2d at 764; Rodrigues, 52 Haw. at 173,

472 P.2d at 520.

On the other hand, we have also subscribed to the principle that "recovery for negligent infliction of emotional distress by one not physically injured is generally permitted only when there is `some physical injury to property or [another] person' resulting from the defendant's conduct."<sup>6</sup>Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., 76 Hawai`i 454, 465-66, 879 P.2d 1037, 1048-49 (1994) (quoting Chedester v. Stecker, 64 Haw. 464, 468, 643 P.2d 532, 535 (1982)) (emphasis added); see also Tabieros v. Clark Equip. Co., 85 Hawai`i 336, 361, 944 P.2d 1279, 1304 (1997)

. Accordingly, we have denied recovery for NIED where the plaintiff has failed to demonstrate any predicate physical or property injury. See, e.g., Jenkins v. Liberty Newspapers Ltd. Partnership, 89 Hawai`i 254, 269, 971 P.2d...