North Carolina Lawyers Weekly
Carsanaro v. Colvin (Lawyers Weekly No. 11-07-0916, 18 pp.) (Ann Marie Calabria, J.) Appealed from Orange County Superior Court (Carl R. Fox, J.) N.C. App. Click here for the full-text opinion.
Holding: A person who knows, or should know, that he or she is infected with a venereal disease has the duty to abstain from sexual conduct or, at the minimum, to warn those persons with whom he or she expects to have sexual relations of his or her condition.
Since a spouse is a foreseeable sexual partner, this duty is also owed to the spouse of any of the infected person’s sexual partner, if the spouse is known or should have been known to the infected person at the time of the sexual intercourse. The infected person can be liable in tort for breaching this duty.
However, if the adulterous spouse knows or should know that he or she has been infected with a sexually transmitted disease prior to transmission of the disease, the adulterous spouse becomes the intervening cause of the spouse’s infection and transforms the infected person’s negligence into a condition of the infection, rather than its proximate cause.
Facts
Plaintiff’s spouse had sexual relations with the defendant. Plaintiff contracted genital herpes and confronted his spouse, who admitted the affair with the defendant and said she believed she contracted genital herpes from him.
Plaintiff brought suit against defendant alleging negligent infliction of a sexually transmitted disease and both negligent and intentional infliction of emotional distress.
The trial court granted the defendant’s motion to dismiss the claim of negligent infliction of a sexually transmitted disease. Plaintiff appealed.
Interlocutory appeal
Each of plaintiff’s causes of action is based on injuries suffered as a result of the same underlying conduct: defendant’s sexual affair with plaintiff’s wife. Since the basis of the claims is the same conduct, the claims necessarily involve overlapping factual issues.
Plaintiff’s damages resulting from his various causes of action are connected and intertwined to such a degree that they should be determined by a single jury. Thus, plaintiff’s appeal affects a substantial right and is properly before this court.
Negligent Infliction of a Sexually Transmitted Disease
Plaintiff argued that the trial court erred by dismissing his claim for negligent infliction of a sexually transmitted disease (NISTD).
It is well settled that a person is liable if he negligently exposes another to a contagious or infectious disease. Crowell v. Crowell, 180 N.C. 516 (1920). In Crowell, the N.C. Supreme Court allowed a married woman to maintain a cause of action against her husband for infecting her with venereal disease.
Here, plaintiff is suing a third party who allegedly infected his wife with a venereal disease, who then allegedly infected plaintiff. Our courts have never addressed the scope of liability to third parties for the negligent exposure of a contagious or infectious disease.
In any negligence action, a plaintiff must show (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by the breach.
Regarding duty, a person who knows, or should know, that he or she is infected with a venereal disease has the duty to abstain from sexual conduct or, at the minimum, to warn those persons with whom he or she expects to have sexual relations of his or her condition.
What duty, if any, a person infected with a venereal disease owes to the spouse of his paramour is an issue of first impression in North Carolina.
We hold that the duty owed by a defendant who knows or has reason to know that he or she has contracted a sexually transmitted disease to warn those persons with whom he or she expects to have sexual relations of his or her condition also extends to the spouse of the infected person’s sexual partners, if the spouse is known or should have been known to the infected person at the time of the sexual intercourse. This is because a spouse is a reasonably foreseeable sexual partner. We expressly decline to address the scope of this duty as it may relate to non-spouses.
Plaintiff’s complaint alleges that defendant knew or should have known that he was infected with herpes, that he infected plaintiff’s spouse with herpes, that defendant was aware that plaintiff and his spouse were married, and that defendant knew or should have known that plaintiff and his wife would engage in sexual intercourse.
The allegations in plaintiff’s complaint, when treated as true, sufficiently alleged that defendant owed a duty to plaintiff.
Intervening Cause
Defendant argued that, since plaintiff was actually infected with herpes by his spouse, it was she, and not defendant, who was the proximate cause of plaintiff’s injury.
The spouse would only become an intervening cause of plaintiff’s herpes infection if she knew or had reason to know that she herself was infected with herpes when she engaged in sexual intercourse with plaintiff.
Plaintiff’s complaint is silent as to when his spouse discovered that defendant had infected her with herpes; therefore, dismissal on this basis pursuant to Rule 12(b)(6) was not appropriate.
If the adulterous spouse knew or should have known that she had been infected with a sexually transmitted disease prior to transmission of the disease to plaintiff, she became the intervening cause of plaintiff’s infection and transformed the defendant’s negligence into a condition of the infection, rather than its proximate cause.
Conclusion
Plaintiff’s complaint, when treated as true, contains sufficient allegations to establish a claim for NISTD. The trial court’s order dismissing this claim is reversed. The defendant’s cross-appeal is interlocutory and is dismissed.
Reversed; cross-appeal dismissed.
