Man could be liable for indirectly transmitting STD to his neighbor

A Chapel Hill man can proceed with an action against his former neighbor for negligently infecting him with a sexually transmitted disease by having an affair with his wife, the Court of Appeals has ruled. It is the first time a North Carolina appellate court has recognized a cause of action for the indirect transmission of a venereal disease.

Orange County Superior Court Judge Carl R. Fox dismissed the negligent transmission claim last October, but the man, Joseph Carsanaro, appealed. At least four other states recognize the cause of action, according to Carsanaro’s lawyer, Nathaniel Smith of Chapel Hill.

A cause of action for the direct transmission of a disease to a plaintiff has long been recognized in North Carolina. The twist in Carsanaro v. Colvin was that Joseph Carsanaro alleged that his wife, Jacqueline Carsanaro, had an affair with their neighbor, John T. Colvin, and contracted genital herpes from him, which she then passed on to her husband.

Colvin argued that since Joseph Carsanaro was actually infected with herpes by his wife, she was the proximate cause of the injury, not Colvin.

Joseph Carsanaro’s complaint doesn’t say when his wife discovered she had the disease. Writing for the Court of Appeals, Judge Ann Marie Calabria noted that Jacqueline Carsanaro would become an intervening cause of her husband’s herpes infection if she knew or had reason to know she was infected when she had sex with him.

That would effectively sever the causal chain between Colvin’s negligence and Joseph Carsanaro’s injury. Charlotte attorney Preston Odom said some negligent infliction cases could come down to a swearing match between the adulterous spouse and paramour. Odom was not involved in the case.

“If an infected person denies that he or she knew about the infection, the question will come down to when the person reasonably should have known,” Odom said. “That would trigger the duty to warn.” But it may be difficult to prove a person knew of his or her infection in cases that involve diseases whose symptoms lie dormant or are not obvious, he said.

Smith said he is absolutely confident that Joseph Carsanaro will be able to prove his case against Colvin.

Unsettling discoveries

The Carsanaros, who married in 1989, lived down the street from Colvin and his wife for 13 years. In February 2009, Joseph Carsanaro discovered “clandestine email communications” between Colvin and Jacqueline Carsanaro, according to his complaint. Joseph Carsanaro told Colvin to stay away from his wife, but Colvin and Jacqueline Carsanaro began having an affair in April 2009.

Joseph Carsanaro became ill in May 2009 and determined that he had contracted genital herpes. After undergoing marital counseling that summer, he confronted his wife about Colvin. She admitted that she had engaged in a sexual relationship with Colvin and said she believed she contracted herpes from him.

In allowing Joseph Carsanaro’s claim against Colvin to proceed, the Court of Appeals focused on the duty a person infected with a sexually transmitted disease has to either abstain from sex or to warn sexual partners of the condition. If an infected person is aware that a sexual partner has a spouse, the duty to warn extends to the spouse, and “the infected person can be liable in tort for breaching this duty.” The court declined to address whether an infected person has any duty to warn non-spouse partners.

The court also ruled that Joseph Carsanaro may recover damages for criminal conversation from Colvin for contracting herpes as a result of Colvin’s affair with his wife. Smith said it is comforting to know that a plaintiff in Joseph Carsanaro’s shoes can advance alternate theories of recovery in a case involving injuries stemming from an affair with a spouse.

Criminal conversation is a tort that requires proof that there was a valid marriage between the plaintiff and the spouse and that the defendant engaged in sexual intercourse with the spouse. Smith said case law made it clear that a plaintiff could recover for an injury to one’s health as a result of criminal conversation, but there weren’t any cases spelling out what an injury to one’s health meant.

“For the first time, the court has said that having acquired a sexually transmitted disease as a result of criminal conversation is an injury to one’s health,” Smith said.

Joseph Carsanaro could recover damages for criminal conversation or under the standalone tort of negligent transmission of a sexually transmitted disease, Smith said. But that would not entitle him to a double recovery, Odom said. “A plaintiff would be faced with an election of remedies issue in that situation,” Odom said.

Judge Fox let stand Carsanaro’s criminal conversation claim as well as claims for negligent and intentional infliction of emotional distress. With the Court of Appeals’ reversal on the negligent infliction of a sexually transmitted disease claim, all four actions will return to Orange County, where Smith said discovery in the case has commenced.

The Carsanaros recently sold their Chapel Hill home, according to the Orange County Register of Deeds. Smith said they are still married.

Colvin and his wife are still listed as owners of their Chapel Hill property. Colvin’s lawyers were not available for comment by press time.

Opinion Brief

Case name: Carsanaro v. Colvin (Lawyers Weekly No. 11-07-0916, 18 pp.)

Court: N.C. Court of Appeals

Judges: Judge Ann Marie Calabria; Judges Rick Elmore and Sanford L. Steelman, concurring

Date: Sept. 6, 2011

Plaintiff’s attorney: Nathaniel Smith of Bagwell, Holt & Smith (Chapel Hill)

Defendant’s attorney: Nicole Taylor of Gailor, Wallis Hunt (Raleigh)

Issue: Did the trial court err when it dismissed the plaintiff’s claim for negligent infliction of a sexually transmitted disease?

Holding: Yes, the allegations in the plaintiff’s complaint, when treated as true, contain sufficient allegations to establish a claim for negligent infliction of a sexually transmitted disease against the defendant.