Williamson v. Waldman

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: KESTIN
• Citation: Williamson v. Waldman, 291 N.J.Super. 600, 677 A.2d 1179 (N.J. Super. App. Div. 1996)
• Decision Date: 02 July 1996
• Parties: , 65 USLW 2059 Karen WILLIAMSON and James Williamson, Plaintiffs-Appellants, v. Leonard WALDMAN, Jeffrey Feldman, and Jacques G. Losman, Defendants-Respondents.

Page 600

291 N.J.Super. 600

677 A.2d 1179, 65 USLW 2059

Karen WILLIAMSON and James Williamson, Plaintiffs-Appellants, v. Leonard WALDMAN, Jeffrey Feldman, and Jacques G. Losman Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued June 11, 1996.

Decided July 2, 1996.

David M. Fried, Newark, for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Fried, on the brief).

Robert J. Mormile, Springfield, for respondent Waldman (Mortenson & Pomeroy, attorneys; Mr. Mormile, on the brief).

Daniel R. Esposito, Princeton, for respondent Feldman (Jackson, Vaurio & Buckley, attorneys, Princeton; Sean P. Buckley, of counsel; Mr. Esposito, on the brief).

Peter A. Olsen, for respondent Losman (Francis & Berry, attorneys; Joan B. Lorio, Morristown, of counsel, and, with Mr. Olsen, on the brief).

Before Judges A.M. STEIN, KESTIN and CUFF.

The opinion of the court was delivered by

KESTIN, J.A.D.

Plaintiff Karen Williamson pleads a cause of action for negligent infliction of emotional distress and related claims based on her fear of developing acquired immune deficiency syndrome (AIDS) or hepatitis. The trial court dismissed on defendants' motions for summary judgment. We reverse.

On June 6, 1991, plaintiff was pricked with a lancet when, functioning as an employee of a cleaning contractor, she attempted to remove EKG stickers from a trash can in defendants' medical offices. A lancet is defined as "a surgical knife with a small, sharp-pointed, two-edged blade". Stedman's Concise Medical Dictionary 551 (2d ed. 1994). It is often referred to as a "short sharp" and is commonly used for pricking a finger to acquire a blood sample. The lancet that punctured plaintiff's skin was concealed within the rubbish. The method of disposal violated regulatory requirements. See N.J.A.C. 7:26-3A.11(c)1.

After the incident, plaintiff discussed it with an acquaintance who was a nurse. She was advised to go to an emergency room to be tested for hepatitis and AIDS. Instead, four days later, plaintiff visited her family physician, Dr. DeMasi, who recommended that plaintiff should be tested for the human immunodeficiency virus (HIV) annually for seven to ten years. No test was performed at that time, however, because Dr. DeMasi believed it was too soon following the puncture incident to obtain a meaningful result. Some eight months later, in February 1992, plaintiff returned to Dr. DeMasi complaining of fatigue. Blood work was done, but an HIV test was not included. Plaintiff visited Dr. DeMasi again in May complaining that she was depressed and tired. More blood work was ordered, again without an HIV test, and antidepressant medication was prescribed. In July 1992, HIV and hepatitis B tests were conducted, with negative results. According to the motion judge, by the time of defendants' motions for summary judgment plaintiff had been tested for HIV and hepatitis five times in the three-and-one-half years since the incident, with negative results on each occasion.

The issue before us is whether it was correct, in the circumstances depicted, for the trial court to dismiss plaintiff's claim on summary judgment because she failed to make a prima facie showing of actual exposure to the diseases she fears, and because, in the light of all the testing and negative results, "plaintiff's reaction to favorable tests and her alleged continued distress in the face of same is idiosyncratic and demonstrates her not to be a person of average constitution." In the latter connection, the motion judge focused on the seminal case of Caputzal v. Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966). There, also in the context of an emotional distress claim, the Supreme Court confirmed it to be a question of law whether a particular consequence of an act or omission was reasonably to be foreseen and, therefore, actionable; or whether it was so highly extraordinary a consequence as to be ineligible for the relief tort law affords. Id. at 78, 222 A.2d 513. The motion judge concluded that because "plaintiff's continued emotional distress and fear of AIDS in light of medical tests and assurances to the contrary is such a highly extraordinary result of defendants' negligence, as presumed for this motion, ... defendants cannot and should not be held as the legal cause thereof."

Juxtaposed against these considerations is a different approach in a similar case. In De Milio v. Schrager, 285 N.J.Super. 183, 666 A.2d 627 (Law Div.1995), decided several months after the trial court decision herein, a dental instrument punctured the skin of a trash collector. The matter was reported to the Division of Waste Management in the State Department of Environmental Protection. After investigation, three separate violation notices were issued charging the dentist with improper disposal of medical waste. There also, the trial court held that proof of actual exposure to HIV was a prerequisite to recovery, but it held, as well, that where the cause of action arose from a violation of the standards governing the disposal of medical waste, "a rebuttable presumption of exposure will arise, enabling plaintiff to survive a motion for summary judgment." Id. at 188, 666 A.2d 627. The court there stressed the approach in 2 Fowler V. Harper & Fleming James, Jr., The Law of Torts, § 18.4 at 1036 (1956), which was at the heart of the governing principle of Caputzal: "in the case of injury or sickness brought on by emotional disturbance, liability 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.' " 48 N.J. at 76, 222 A.2d 513. We take the De Milio analysis to embody the idea that where a defendant's negligent act or omission provides an occasion from which a reasonable apprehension of contracting a deadly disease may eventuate, and where the quality of the conduct is such to create a presumption of exposure, the resulting claim for damages by reason of emotional injury may not be dismissed on summary judgment.

It cannot validly be said, as a matter of law, in the light of common knowledge, that a person who receives a puncture wound from medical waste reacts unreasonably in suffering serious psychic injury from contemplating the possibility of developing AIDS, even if only for some period of time, until it is no longer reasonable, following a series of negative tests, to apprehend that result. Indeed, one need not have actually acquired the HIV virus to be so affected by such a fear for a period, especially since some time must pass before an accurate test can be administered. We know of no reason, given existing circumstances and the realities of the times, as well as the policies that underlie tort law doctrine in this state, to require as a prerequisite to recovery for infliction of emotional distress that the plaintiff first establish actual exposure to the feared disease. The cause of action is "based on a reasonable concern that [the claimant] has an enhanced risk of disease," Mauro v. Raymark Indus., Inc., 116 N.J. 126, 137, 561 A.2d 257 (1989), and a claim for medical surveillance damages. Ayers v. Township of Jackson, 106 N.J. 557, 590-91, 525 A.2d 287 (1987); Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 560-563, 495 A.2d 495 (Law Div.1985); see also Evers v. Dollinger, 95 N.J. 399, 409-11, 471 A.2d 405 (1984).

Surely, the reaction of any claimant who receives a puncture wound from medical waste will be subjective. It...