2008 VT 124


Endres
v. Endres (2007-395)
 
2008 VT 124
 
[Filed 19-Sep-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 124

 

No. 2007-395

 

Joan E. Endres


Supreme Court


 


 


 


On Appeal from


     v.


Chittenden Superior Court


 


 


 


 


Kevin J. Endres


January Term, 2008


 


 


 


 


Matthew
  I. Katz, J.


 

Kurt M. Hughes of Murdoch & Hughes, Burlington, for
Plaintiff-Appellant.
 
John L. Pacht and Gregory A.
Weimer of Hoff Curtis, Burlington, for Defendant-Appellee.
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.   For the second time, we consider the suit
of wife, Joan Endres, against her former husband,
Kevin Endres, for negligent transmission of a
sexually transmitted disease (STD).  See Endres
v. Endres, 2006 VT 108, 180 Vt. 640, 912 A.2d 975
(affirming dismissal of wife’s claims for battery and intentional inflection of
emotional distress and reversing dismissal of negligence claim).  Wife’s
suit alleges that, while they were married, husband negligently infected her
with Human Papillomavirus (HPV).  The superior
court granted husband summary judgment, concluding that wife failed to
demonstrate that husband breached a duty because wife provided no evidence that
husband knew or should have known that he had HPV.  On appeal, wife argues
that there remain issues of material fact as to whether husband should have
known he was infected.  We affirm.
¶ 2.            
Wife and husband were married in 1972 in New York, and thereafter took
up residence in Milton, Vermont.  At some point during the course of the
marriage, husband was involved in an extramarital relationship.  In July
1999, during a routine pap smear, wife tested positive for HPV, a disease that
is transmitted by skin-to-skin contact, including through sexual
intercourse.  Subsequently, wife was formally diagnosed with HPV, and
later tested positive for types of HPV that cause cervical, vulvar,
oral, sinus, and anal cancer.  
¶ 3.            
In 2003, wife commenced suit, bringing claims for negligence, battery,
and intentional infliction of emotional distress.  In particular, with
respect to the negligence claim, wife alleged that husband “knew that by
engaging in an extramarital relationship he exposed himself to potential risk
of becoming infected with an incurable infection which he could then transmit
to [wife]” and that husband “had a duty to refrain from extramarital
relationships and to protect [wife] from infection.”  Wife alleged that
husband breached this duty when he engaged in extramarital sex and then took no
steps to protect wife from infection.  
¶ 4.            
Husband moved to dismiss under Vermont Rule of Civil Procedure 12(b)(6),
arguing that wife failed to state a claim upon which relief could be
granted.  The superior court agreed and granted husband’s motion,
reasoning that “each and every case allowing for tort recovery for the
transmission of sexually transmitted diseases has premised recovery on the
defendant’s actual or constructive knowledge of the disease.”  The court
concluded that wife had failed to allege such knowledge, stressing that mere
“[p]romiscuity or infidelity has never been held to
support such an inference of knowledge.”  
¶ 5.            
On appeal, we affirmed the dismissal of wife’s claims for battery and
intentional infliction of emotional distress, stating that those claims
required “an allegation that husband actually knew he was infected with
HPV.”  Endres, 2006 VT 108, ¶ 6. 
We reversed the court’s dismissal of wife’s negligence claim.  Id.
¶ 5.  Although we acknowledged that wife had not yet set forth any facts
demonstrating that husband owed her, or had breached, a legal duty, we held
that wife’s assertion of negligence and related injury sufficed to survive a Rule
12(b)(6) motion.  Id. (“[I]t is sufficient against a motion to
dismiss to allege that defendant acted negligently and as a result plaintiff
was injured.” (quotation omitted)).
¶ 6.            
On remand, after discovery concluded, husband moved for summary
judgment, arguing that wife had failed to raise an issue of material fact as to
his actual or constructive knowledge of infection.  Specifically, husband
relied upon his affidavit that stated that he had never been diagnosed with or
exhibited any symptoms of HPV.  Further, he stated that he has no reason
to believe that he has HPV and believes he does not have HPV.  Based on
the affidavit, husband argued that it was undisputed that he did not have
actual or constructive knowledge that he had HPV and could transmit it to
wife.  He further contended that wife had failed to raise an issue of
material fact as to causation, because she had not demonstrated that husband
had given her HPV or even that she had acquired HPV through sexual
contact.  
¶ 7.            
In response, wife filed her own affidavit and one from a doctor. 
Her affidavit averred that husband had “at least one extra-marital
relationship” and that “[a]s an apparent result of this relationship(s),
[husband] infected [her] with . . . HPV.”  She stated that, prior to a pap
smear in 1999, her tests were negative for HPV.  She claimed that she had
had no sexual partners other than husband so that “[t]here [was] no other
possible source of [her] HPV infection than from [husband].”  The
affidavit of the physician explained, among other things, that: (1) seventy to
eighty percent of women are infected with HPV at some time in their lives; (2)
the number of sexual partners, or the number of sexual partners of a partner,
increases the risk of infection; (3) there is no medical cure for HPV; and (4)
there is no reliable method to determine HPV infection for men.  
¶ 8.            
With respect to the element of causation, based on the information in the
affidavits, wife responded that: (1) her medical records showed that she had
not been diagnosed with an STD before 1999; (2) her records indicated that she
was diagnosed with HPV in 1999; (3) pap testing would have produced evidence of
HPV prior to 1999 had wife been infected; (4) wife was diagnosed with cervical
HPV, which is transmissible through sexual contact; and (5) wife had sexual
contact in the relevant period only with husband.  
¶ 9.            
In assessing husband’s motion for summary judgment, the trial court
examined what duty husband owed to wife.  Based on case law in other
states, the court concluded that wife would have to show that husband knew or
should have known that he had HPV to demonstrate that he breached a duty owed
to wife.  The court explained husband’s knowledge in this case as follows:
 
[Husband] claims he did not know he was a carrier, had no symptoms, and in fact
has never been diagnosed as having HPV. [Wife], in turn, does not present any
evidence that [husband] knew he was carrying this STD, or indeed, that he
actually carried it. Indeed, [wife]’s expert states that there is no reliable
method of diagnosing men with HPV until symptoms appear.  [Wife] does not
contest the fact that [husband] was asymptomatic, and offers no other proof
suggesting he knew he was infected.  Allegations alone cannot create triable issues of fact.  Thus, the mere fact that
[wife] contracted HPV does not constitute evidence that [husband] knew he had
it. 
 
(Citations
omitted.)  Without any evidence to demonstrate that husband knew or should
have known he was infected, the court concluded that wife failed to demonstrate
that husband breached a duty owed to her and granted husband summary
judgment.  Wife now appeals.
¶ 10.        
We review an award of summary
judgment de novo, construing all doubts and inferences in favor of the
nonmoving party.  In re Mayo Health Care, Inc., 2003 VT 69,
¶ 3, 175 Vt. 605, 830 A.2d 129 (mem.).  The
inquiry is familiar: whether there are any genuine issues of material fact and
whether, in their absence, either party deserves judgment as a matter of law.
 Id.; see V.R.C.P. 56(c)(3).  Under Rule 56(e), the nonmoving
party has the burden of submitting credible documentary evidence or affidavits
sufficient to rebut the evidence of the moving party.  See Boulton v. CLD Consulting Eng’rs,
Inc., 2003 VT 72, ¶ 5, 175 Vt. 413, 834 A.2d 37.  
¶ 11.        
To support her negligence claim, wife must show that husband owed her a
legal duty, that he breached that duty, that the breach was the proximate cause
of her injury, and that she suffered actual loss or damage.  See O’Connell
v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42 (1995) (listing
elements of common law negligence).  Duty, the first element, is central
to a negligence claim, and its existence is primarily a question of law.  Denis
Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993).
 Duty is “ ’an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is entitled to
protection.’ ”  Id. (quoting W. Prosser & W. Keeton, The
Law of Torts § 53, at 358 (5th ed. 1984)).  Although we have not addressed
the question directly, courts have uniformly imposed on persons with
communicable diseases a tort duty not to infect others.  See Berner v. Caldwell, 543 So. 2d 686, 688 n.1
(Ala. 1989) (collecting cases), overruled on other grounds by Ex
parte General Motors Corp., 769 So. 2d 903 (Ala. 1999); see generally D.
Mack, Cleansing the System: A Fresh Approach to Liability for the Negligent
or Fraudulent Transmission of Sexually Transmitted Diseases, 30 U. Tol. L. Rev. 647 (1999).  Such a duty extends to
transmission of STDs.  See Berner, 543
So. 2d at 689 n.2.
¶ 12.        
This case primarily turns on what a plaintiff must demonstrate to show a
breach of the duty not to infect others with an STD.  The question is
hardly a novel one, and our sister jurisdictions have been almost unanimous in
their answer to it.  In recognizing the duty not to transmit an STD to a
sexual partner, courts require persons to exercise ordinary care to avoid
transmission.  To establish an actionable breach of that standard of care,
the plaintiff must show that the defendant had actual or constructive knowledge
that he or she was infected with the transmitted STD.  See, e.g., John
B. v. Superior Court, 137 P.3d 153, 160 (Cal. 2006) (collecting cases). 
¶ 13.        
This approach is in keeping with the general principles underlying
common-law negligence.  See Largess v. Tatem,
130 Vt. 271, 276, 291 A.2d 398, 401 (1972) (explaining that liability for
negligence requires a plaintiff to demonstrate that a defendant had “knowledge
or reasonably was chargeable with knowledge that his act or omission involved
danger to another”); see also Restatement (Second) of Torts § 289 cmt. b (1965) (stating that “[i]n
order that an act may be negligent it is necessary that the actor should
realize that it involves a risk of causing harm to some
interest of another”).  Whether a defendant is negligent depends on
whether his or her action was objectively reasonable under the circumstances;
that is, the question is whether “the actor either does foresee an unreasonable
risk of injury, or could have foreseen it if he conducted himself as a
reasonably prudent person.”  John B., 137 P.3d at 160 (citation
omitted).  
¶ 14.        
Our case law on negligence has regularly allowed plaintiffs to
demonstrate a breach of duty by submitting evidence to show a defendant’s
actual or constructive knowledge.  See, e.g., Malaney
v. Hannaford Bros. Co., 2004 VT 76, ¶ 8, 177 Vt. 123, 861 A.2d 1069
(announcing standard in slip-and-fall cases); Vince v. Wilson, 151 Vt.
425, 429, 561 A.2d 103, 105 (1989) (applying standard in negligent-entrustment
cases); Lane Constr. Corp. v. State, 128 Vt. 421, 428, 265 A.2d 441, 445
(1970) (“Foresight of harm lies at the foundation of negligence.  The
opportunity for knowledge, when available by the exercise of reasonable care,
is the equivalent of knowledge itself.  Such knowledge may be implied,
imputed and constructed from the circumstances.”).  We see no reason to
depart from this standard in the case of STDs.
¶ 15.        
Demonstration of breach through constructive knowledge is important in
the determination of liability for negligent transmission of STDs.  A
plaintiff will rarely be able to show that a defendant had actual knowledge of
his or her infection.  Moreover, if only those who have tested positively
for an STD—and thus actually know that they are infected—are subject to suit,
there may be “an incentive for some persons to avoid diagnosis and treatment in
order to avoid knowledge of their own infection.”  John B., 137
P.3d at 161 (quotation omitted).  By contrast, using a constructive
knowledge requirement holds responsible those who consciously avoid knowledge
of infection even when suffering visible symptoms of a disease.  See Lane
Constr. Corp., 128 Vt. at 428, 265 A.2d at 445 (“Knowledge of true facts
may be essential to careful conduct, and where knowledge is required, voluntary
ignorance is culpable and affords no protection from legal liability.”); cf. Nieto
v. Pence, 578 F.2d 640, 642 (5th Cir. 1978) (adopting a
constructive-knowledge rule in the context of an action for fraudulent
nondisclosure so that the defendant could “not close his eyes to the
truth”).  Thus, we agree with the vast majority of jurisdictions that, for
the purposes of a negligent-transmission claim, a plaintiff must demonstrate
that the defendant had actual or constructive knowledge of his or her infection.
¶ 16.        
The parties disagree on what type of evidence is sufficient to impute
constructive knowledge to a defendant.  See John B., 137 P.3d at
161 (“It must be noted, though, that constructive knowledge . . . encompasses a
variety of mental states . . . .” (quotations and citation
omitted)).  In wife’s view, any person who has sexual relations with a
person other than his or her primary sexual partner has constructive knowledge
that there is a risk of contracting an STD and infecting the primary sexual
partner.  According to husband, constructive knowledge is narrower and
requires at least some evidence that a defendant had reason to know he was
infected with an STD.  We accept husband’s definition as more consistent
with our existing law and the law from other jurisdictions.
¶ 17.        
As explained above, our case law requires “knowledge of danger” to show
constructive knowledge sufficient to establish a breach of duty.  Largess,
130 Vt. at 276, 291 A.2d at 401.  This is consistent with the decisions
from other jurisdictions that apply the general standard of constructive
knowledge to negligent-transmission cases—that the defendant should have known
that he or she was carrying an STD.  See, e.g., Berner,
543 So. 2d at 689 (holding that “one who knows, or should know, that he or she
is infected” may be liable); Meany v. Meany, 639 So. 2d 229, 234 (La.
1994) (articulating standard that individual “who knows, should know, or should
suspect that he or she is infected” can be liable); McPherson v. McPherson,
1998 ME 141, ¶ 11, 712 A.2d 1043 (same); M.M.D v. B.L.G, 467 N.W.2d 645,
647 (Minn. Ct. App. 1991) (person who “should know there is a reasonable
possibility that herpes has been contracted” may be liable for transmitting the
disease to others); Hamblen v. Davidson, 50 S.W.3d 433, 439 (Tenn. Ct.
App. 2000) (holding that “an individual who knows or should know he has a
venereal disease” can be liable).  Courts addressing this issue have
uniformly allowed plaintiffs to demonstrate knowledge by showing that the
defendant has been diagnosed with an STD or has suffered from symptoms of an
STD.  See, e.g., Meany, 639 So. 2d at 231-32; M.M.D., 467
N.W.2d at 647; Ray v. Wisdom, 166 S.W.3d 592, 598-99 (Mo. Ct. App.
2005); Deuschle v. Jobe,
30 S.W.3d 215, 219 (Mo. Ct. App. 2000); Hamblen, 50 S.W.3d at 439.
 Even when the symptoms could also be consistent with another illness,
this evidence may still be enough for the case to reach the jury.  See Ray,
166 S.W.3d at 598-99 (when the defendant suffered from Agent Orange exposure
and diabetes in addition to herpes, the wife nonetheless presented enough
evidence of constructive knowledge to survive summary judgment by showing the
defendant probably had symptoms of herpes).  With respect to HIV, one
court explained that a plaintiff could demonstrate constructive knowledge by
showing that the defendant had actual knowledge that a prior sex partner had
been diagnosed with HIV.*  See Doe
v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993).
¶ 18.        
Thus, both our case law and the decisions from other jurisdictions
support husband’s position and the trial court’s decision.  A defendant
must have actual or constructive knowledge that he is infected with a disease
to be liable for negligent transmission of that disease.
¶ 19.        
Wife argues for an expanded concept of duty and knowledge in two
respects.  First, she argues that the duty should be seen as a marital
duty—an obligation owed to one’s spouse—rather than a duty to avoid sexually
transmitting a disease.  As the Maine Supreme Judicial Court held in
response to a similar argument, there is no support for such a duty in
negligence law.  See McPherson, 1998 ME 141, ¶ 9 (surveying
cases).  Indeed, such a duty would, in effect, create a form of strict
liability.  
¶ 20.        
Related to this marital-duty argument is wife’s claim that she would not
have consented to sexual intercourse had she known of husband’s
infidelity.  Wife’s consent was integral to her battery claim, which was dismissed
by the trial court on Rule 12(b)(6) grounds.  See Christman
v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746 (stating that medical
provider commits battery if the provider’s conduct exceeds the scope of
patient’s consent).  We previously affirmed that decision, Endres, 2006 VT 108, ¶ 6, and now conclude that
wife’s consent has no bearing on her negligence claim. 
¶ 21.        
Wife next argues that we should impute constructive knowledge to all
individuals who engage in sexual activity because sexual contact is inherently
risky.  Thus, under wife’s theory, any sexual contact would be sufficient
to create liability.  While we are cognizant of the risks of sexual
contact, we decline to create such a broad duty.  Moreover, there is no
need to do so in this case because wife’s theory of negligence is not related
to the facts of her case.  She has offered no evidence that husband knew
of any risk of transmitting a sexual disease based on the incidence of such
diseases in the population.  Instead, wife contends that the risk of
transmitting an STD has become so great that we should find constructive
knowledge as a matter of law.  In essence, we are asked to eliminate the
knowledge element of tort liability.  Again, as with her argument about
marital fidelity, wife asks us to create a novel form of strict
liability.  
¶ 22.        
One court has considered whether to apply strict liability to cases
involving transmission of STDs and rejected the application of that theory.
 See Johnson, 817 F. Supp. at 1397-99.  The court analyzed the
strict-liability claim under the Restatement of Torts (Second) § 519 (1965),
and found the doctrine inapplicable, because “sexual activity . . . is not an
inherently or abnormally dangerous activity.”  Johnson, 817 F.
Supp. at 1399.  Since that decision, two law review articles have urged
the adoption of strict liability for transmission of a sexual disease at least
in some instances.  See D. Pollard, Sex Torts, 91 Minn. L. Rev.
769, 804-24 (2007); V. Sentome, Attacking the Hidden
Epidemic: Why a Strict Liability Standard Should Govern the Transmission of
Sexually Transmitted Diseaeses, 2006 U. Chi.
Legal F. 409, 427-40.
¶ 23.        
We decline to make a ruling based on strict liability.  Wife has
neither relied on nor briefed that theory.  Moreover, the factual record
in this case is extremely sparse.  Wife has alleged that husband had sex
with another person.  There is no allegation of when this sex occurred,
except that it occurred during the marriage.  Furthermore, wife submitted
no evidence concerning whether husband used a condom, how frequently he had
intercourse, or how many partners he had.  Thus, wife asks us to impose
strict liability simply because husband had one extramarital sexual encounter,
irrespective of the circumstances.
¶ 24.        
While we cannot accept this invitation, we do not reject the policy
arguments for strict liability in similar cases.  STDs are a major health
threat in the United States and in Vermont.  More than sixty-five million
Americans are currently infected with an incurable STD, and fifteen million
more become infected with a one or more STDs each year.  Ctrs. for Disease Control & Prevention, Tracking the
Hidden Epidemics: Trends in STDs in the United States 1 (2000),
http://www.cdc.gov/nchstp/dstd/Stats_Trends/Trends2000.pdf.  In
particular, HPV infects an alarmingly high number of Americans.  See id.
at 2 (reporting that twenty million Americans are currently infected with HPV,
with an estimate of more than five million more cases each year).  Indeed,
HPV represents the fastest growing STD in this country.  Am. Soc. Health Ass’n, Sexually Transmitted Diseases in America: How
Many Cases, and At What Cost? fig.1 (1998),
http://www.kff.org/womenshealth/1445-std_rep.cfm.  We recognize that establishing
constructive knowledge of infection will be difficult in many cases. 
Several forms of HPV are subclinical and do not produce any symptoms for years,
and in men HPV rarely produces symptoms or leads to other health
problems.  Ctrs. for Disease Control &
Prevention, HPV and Men Fact Sheet (2007),
http://www.cdc.gov/STD/hpv/STDFact-HPV-and-men.htm.  Strict liability for
the transmission of an STD, without disclosure, could increase accountability
by requiring disease transmitters to internalize the costs of their actions,
encourage testing and disclosure, and ultimately educate the public about this
serious health risk.  
¶ 25.         On a
final note, we acknowledge that, to a limited extent, the Legislature has
entered this area of the law and may be in a better position than the courts to
provide an appropriate remedy.  For example, 18 V.S.A. § 1106 makes it a
crime for a person to have “sexual intercourse while knowingly infected with
gonorrhea or syphilis.”  In connection with that provision, § 122(a)
provides that a person “injured or damaged by a violation of this
title . . . may bring an action for equitable relief or
damages arising from such violation.”  In their current form, these
statutes are not directly related to this case because § 1106 does not list
HPV, and, in any event, wife could not overcome the requirement in § 1106 to
demonstrate that husband was “knowingly infected.”  We encourage the
Legislature to consider the overwhelming and increasing social costs of STDs
like HPV and to revisit these statutes to determine whether the list of STDs
should be expanded and whether a broader standard for liability is appropriate.
Affirmed.
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





*  The decisions
from other jurisdictions do not necessarily exhaust the circumstances in which
constructive knowledge can be shown.  At least with respect to the
transmission of HIV/AIDS, one commentator has argued that constructive
knowledge should be found for defendants who engage in high risk activities,
including intravenous drug use, homosexual intercourse, unprotected sex with
multiple partners, and prostitution.  J. Turcotte,
When You Should Have Known: Rethinking Constructive Knowledge in Tort
Liability for Sexual Transmission of HIV, 52 Me. L. Rev. 261, 296
(2000).  



