B.N. v. K.K

ADKINS, Judge. This is a case certified to us by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Md. Code (1984 Repl.Vol.) Cts. & Jud.Proc. Art. §§ 12-601 through 12-609. The certified question is: ¹³⁸ Does Maryland Recognize A Cause of Action for Either Fraud, Intentional Infliction Of Emotional Distress, Or Negligence Resulting From the Sexual Transmission Of A Dangerous, Contagious, and Incurable Disease, Such As Genital Herpes?

Our answer is affirmative as to each named cause of action, subject to the proviso that there be a proper factual showing in every case. We add, too, that even if a plaintiff makes the requisite factual showing, the defendant, obviously, may raise various defenses. We do not address possible defenses because we have not been asked to do so. In this case, appellant, B.N.

(Ms. N.), has sued appellee, K.K. (Dr. K.), in the United States District Court, under that court’s diversity jurisdiction.. 28 U.S.C. § 1332 . The federal court’s certification order instructs us: The sufficiency of the Plaintiff’s Complaint regarding the allegations of the elements of each tort is not part of the certified question. The Court of Appeals is asked to assume the sufficiency of each Count of the Complaint as plead by the Plaintiff [Ms. N.].

The facts are those facts alleged by the complainant in support of her causes of action. Those facts, or those pertinent to our decision, we now state in summary form. Between July and December 1983, Ms. N. was employed as a nurse at Johns Hopkins Hospital in Baltimore. For part of the period, Dr. K. also worked there.

From July through October of that year, Ms. N. and Dr. K. “were involved in an intimate boyfriend-girlfriend relationship” and “engaged in acts of sexual intercourse.” While this was going on, Dr. K. knew he had genital herpes, but never disclosed that fact to Ms. N., who neither knew nor had any reason to believe that Dr. K. “was a carrier of genital herpes.” On or about 1 October 1983, Ms. N. and Dr. K. engaged in sexual intercourse. On that date Dr. K. knew that his disease was active and would be transmitted to Ms. N. through sexual intercourse. That result in fact occurred and was caused by Dr. K.’s conduct, Ms. N. never having ¹³⁹ engaged in sexual contact with anyone but Dr. K. during the relevant period. On the basis of these general allegations, as well as some others contained in particular counts, to some of which we shall later refer, Ms. N. charged Dr. K. with fraud (count one); intentional infliction of emotional distress (count two); negligence (count three); and assault and battery (count four). 1 We shall address each of the first three asserted causes of action, but in an order inverse to that of the counts.

By way of preliminary statement, however, we note that although the certified question appears to be one of first impression in Maryland, traditional tort or criminal law concepts have frequently been applied to produce liability for the transmission of contagious disease. We shall apply conventional doctrine here. 2 Before we do so we shall supply a context for our discussion by listing the principal characteristics of genital herpes. Genital herpes is a contagious, 3 painful, 4 and incurable 5 disease that is spread by ¹⁴⁰ sexual contact. 6 It is an infectious disease that endangers public health. 7 ¹⁴¹ I. Negligence The traditional elements of a cause of action in negligence may be stated as: 1. A duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2.

A failure on the person’s part to conform to the standard required: a breach of the duty____ 3. A reasonably close causal connection between the conduct and the resulting injury____ 4. Actual loss or damage resulting to the interests of another____ W.P. Keeton, Prosser and Keeton on the Law of Torts, 164-165 (5th ed. 1984) [footnotes omitted] [hereinafter Prosser]. See also Restatement (Second) of Torts § 281 (1965).

This is the accepted doctrine in Maryland. Maenner v. Carroll, 46 Md. 193, 212 (1877); R.P. Gilbert, P. Gilbert & R.J. Gilbert, Maryland Tort Law Handbook § 1.4 (1986) [hereinafter Gilbert]. The notion of duty is founded on the “responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others.” Moran v. Fabergé, 273 Md. 538, 543 , 332 A.2d 11, 15 (1975). “When a reasonable person knows or should have known that certain types of conduct constitute an unreasonable risk of harm to another, he or she has the duty to refrain from that conduct.” McCance v. Lindau, 63 Md.App. 504, 514 , 492 A.2d 1352, 1358 (1985). An important factor used to determine the existence of a duty is foreseeability.

This test, whether in the context of causation or duty, is “intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm, and to avoid the attachment of liability where, in the language of Section ¹⁴² 435(2) of the Restatement (Second) of Torts (1965), it appears ‘highly extraordinary’ that the negligent conduct should have brought about the harm.” Henley v. Prince George’s County, 305 Md. 320, 334 , 503 A.2d 1333, 1340 (1986). By the same token, a duty is readily found if it appears highly likely that the conduct in question should have brought about the harm. See, Restatement (Second) of Torts § 435(2) (1965); F. Harper, F. James, Jr., & 0. Gray, 3 The Law of Torts, 656-659 & nn. 8 & 9 (2d ed. 1986); and Prosser, supra, at 298-300.

One who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom thé infected person comes into contact. As a consequence, the infected person has a duty to take reasonable precautions—whether by warning others or by avoiding contact with them—to avoid transmitting the disease. “Hence, if defendant knew that he was afflicted with smallpox it then became and was his duty to keep away from other persons, or should other persons approach him to notify them of the fact so that they might protect themselves.” Hendricks v. Butcher, 144 Mo.App. 671, 674 , 129 S.W. 431, 432 (1910). It is “well established that one who negligently—that is, through want of ordinary care—exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor, in the absence of contributory negligence— ” Kliegel v. Aitken, 94 Wis. 432, 435 , 69 N.W. 67, 68 (1896). And in Long v. Adams, 175 Ga.App. 538 , 333 S.E.2d 852 (1985), the court held that a woman breached her duty of care when, knowing she had genital herpes, she engaged in sexual intercourse with a man without informing him of that fact.

See also Duke v. Housen, 589 P.2d 334, 340 (Wyo.), cert. denied, 444 U.S. 863 , 100 S.Ct. 132 , 62 L.Ed.2d 86 (1979), in which the male appellant escaped liability for negligently transmitting gonorrhea to a female friend, but only because the statute of limitations had run. See also, S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo.1986) (Abro ¹⁴³ gating doctrine of spousal immunity in wife’s action charging husband with negligent transmission of genital herpes). As we have seen, Ms. N. has alleged that Dr. K., knowing he had active genital herpes, a highly contagious, sexually transmitted disease, had sexual intercourse with her. See nn. 3 & 6, supra.

If she can prove these allegations, it would be reasonably foreseeable by Dr. K. (or a fact-finder could so conclude) that Ms. N. would be harmed by his conduct. She was a clearly identified potential victim. See Henley, 305 Md. at 335-336 , 503 A.2d at 1341 (foreseeable identification of a plaintiff is relevant to the determination of a duty to warn).

As a consequence, Dr. K. had a duty either to refrain from sexual contact with Ms. N. or to warn her of his condition. If, as she charges, he negligently failed to do either, he breached his duty. Ms. N. also has alleged that as the direct result of this breach of duty, she contracted a serious, painful, and incurable disease. See nn. 4 & 5, supra.

Her complaint avers facts that, if believed, show the existence of a duty, the defendant’s breach of that duty, and actual injury to her proximately caused by the breach. She has stated a cause of action in negligence that is cognizable under Maryland law. For a discussion of the application of negligence principles to the transmission of genital herpes, see generally, Note, “Kathleen K. v. Robert B.: A Cause of Action for Genital Herpes Transmission,” 34 Case W.Res.L.Rev. 498, 513-518 (1984) [hereinafter Note, “Kathleen K.”]; Note, “Liability in Tort for the Sexual Transmission of Disease: Genital Herpes and the Law,” 70 Cornell L.Rev. 101, 110-124 (1984) [hereinafter Note, “Liability”]; Note, “HERPES —A Legal Cure-—Can the Law Succeed Where Medicine Has Failed?,” 61 U.DetJ.Urb.L. 273, 275-279 & 282-283 (1984); Comment, “You Wouldn’t Give Me Anything, Would You? Tort Liability for Genital Herpes,” 20 Gal.W.L.Rev. 60, 64-73 (1983); and Comment, “The Consequences of an Uninformed Ménage á Trois Extraordinaire: Liability to Third Parties for the Nondisclosure of Genital Herpes Be ¹⁴⁴ tween Sexual Partners,” 29 St. Louis U.L.J. 787, 793-801 (1985).

II

Infliction of Emotional Distress In Harris v. Jones, 281 Md. 560, 566 , 380 A.2d 611, 614 (1977), we agreed “that the independent tort of intentional infliction of emotional distress should be sanctioned in Maryland____” Chief Judge Murphy, writing for the Court, identified the four elements of the tort: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe. Id. Ms. N. avers, in her emotional distress count, that Dr. K., aware of the fact that he had active genital herpes, a contagious and incurable disease that is spread by sexual contact, engaged in sexual intercourse with her, thereby transmitting the disease to her. These allegations suffice, if established, to support the first element of the tort.

Even if Dr. K. did not actually intend to inflict severe emotional distress, it is enough if “he [knew] that such distress [was] certain, or substantially certain, to result from his conduct; or where [he acted] recklessly in deliberate disregard of a high degree of probability that the emotional distress [would] follow.” Harris, 281 Md. at 567 , 380 A.2d at 614 . This is so because according to the facts we must take as established for the purposes of this case, Dr. K. knew the nature of the disease, including its painful nature and its incurability, and also that his disease was active at the time he had sex with Ms. N., and that the disease, in its active state, is transmitted through sexual intercourse. See nn. 3-6, supra. That the transmission of genital herpes is substantially certain to produce severe emotional distress appears from the characteristics of the illness; these characteristics also support the extreme and ¹⁴⁵ outrageous nature of Dr. K.’s conduct, if they are adequately proven.

Ms. N. has alleged specifically the painful and incurable aspects of genital herpes. In addition, this malady is associated with the development of cervical cancer, with the dangers of miscarriage and premature delivery during childbirth, and with a high mortality rate for children, born of mothers who have the disease, who thereby contract herpes at birth. 8 Furthermore, one who has the disease should at a minimum refrain from sexual relations while the disease is in its active stages. Note, “Liability” at 106. See also American Public Health Ass’n, Control of Communicable Diseases in Man 184 (14th ed. 1985) [hereinafter Control of Communicable Diseases ]; and Centers for Disease Control, Public Health Service, U.S. Dep’t of Health and Human Services, 1985 STD [Sexually Transmitted Diseases] Treatment Guidelines 15 & 35 (Sept. 1985).

In short, one who has genital herpes may be deprived of most normal sexual activity, marriage may be virtually out of the question, and vaginal childbearing may be practically ruled out. All this is in addition to the pain produced by the disease itself. It is not surprising that the psychological trauma produced by the disease “is often as debilitating as the physical consequences.” Note, “Liability” at 107. See also M. Oxman, “Genital Herpes,” Infectious Diseases and Medical Microbiology, 1041, 1049 (2d ed. 1986) (“They [repeated episodes of recurrent infection] produce enough physical and psychological distress to cause most affected persons to seek some form of relief.”). 9 ¹⁴⁶ One who knowingly engages in conduct that is highly likely to infect another with an incurable disease of this nature, and who also is aware of the nature of the disease, not only engages in intentional or reckless conduct as those terms are defined in Harris ; he or she has committed extreme and outrageous conduct.

We are not dealing here with “ ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Harris, 281 Md. at 567 , 380 A.2d at 614 (quoting Restatement (Second) of Torts § 46 comment d (1965)). We do not have the simple rudeness and annoying collection efforts that were found not outrageous in Dick v. Mercantile-Safe Dep. & Trust, 63 Md.App. 270, 276-277 , 492 A.2d 674, 677-678 (1985), or the “bad taste and poor judgment” that did not suffice in Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 60 , 502 A.2d 1057, 1064 , cert. denied, 306 Md. 118 , 507 A.2d 631 (1986). See also Continental Cas. Co. v. Mirabile, 52 ¹⁴⁷ Md.App. 387, 449 A.2d 1176 cert. denied, 294 Md. 652 (1982) (series of petty humiliations not enough).

Dr. K.’s actions, as alleged here, certainly were not less outrageous than the stepfather’s sexual child abuse that the trial court found adequate in Reagan v. Rider, 70 Md.App. 503 , 521 A.2d 1246 (1987). As we said in Harris, 281 Md. at 569 , 380 A.2d at 615 , “[i]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as extreme and outrageous; where reasonable men may differ, it is for the jury to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Assuming proof of the conduct we have outlined as well as the relationship of the parties, we think this case easily crosses the “extreme and outrageous” threshold. The causal connection between the wrongful conduct and the emotional distress is apparent, if the facts we have recounted, or substantially those facts, are established. The remaining element to consider is the requirement that the emotional distress be severe.

Ms. N. has in substance alleged that, and the ultimate outcome must, once again, depend on what she proves. 10 In Harris we found insufficient evidence of the necessary severity when the plaintiff showed no more than humiliation, an aggravation of an existing nervous condition, and the worsening of a speech impediment that required no change in the treatment he had been receiving for six years prior to the mistreatment for which he sued. 281 Md. at 572 , 380 A.2d at 617 . In Moniodis v. Cook, 64 Md.App. 1, 16 , 494 A.2d 212, 220 , cert. denied, 304 Md. 631 , 500 A.2d 649 (1985), on the other hand, Ms. Cook was allowed to recover when she showed, among other things, that as a result of the outrageous conduct in ¹⁴⁸ question she was no longer able to perform household chores and had become a recluse. Ms. N. has not charged, at least not expressly, that degree of severity. We do not believe, however, that a showing like that in Moniodis is essential to recovery.

While the emotional distress must be severe, it need not produce total emotional or physical disablement. Reagan v. Rider, 70 Md.App. at 511 , 521 A.2d at 1250 . McCaskill v. Barr, 92 Ill.App.3d 157, 158-159 , 414 N.E.2d 1327, 1328 , 47 Ill.Dec. 211, 212 (1980) (“[A] line will be drawn between trivial injuries to the psyche and severe mental disturbances.” But “Illinois ... does not require physical injury or disability to accompany, or result from the psychic trauma.”). Other courts have indicated that there is a cause of action for intentional infliction of emotional distress with facts not unlike those averred here.

Kathleen K. v. Robert B., 150 Cal.App.3d 992 , 198 Cal.Rptr. 273 (1984); Long v. Adams, supra, (both involving genital herpes). And severity must be measured in light of the outrageousness of the conduct and the other elements of the tort. Reagan, 70 Md.App. at 513-514 , 521 A.2d at 1251 . The nature of the conduct itself may provide evidence of the severity of the distress.

Vicnire v. Ford Motor Credit Co., 401 A.2d 148 (Me.1979). That is, if “the acts of the defendant are so horrible, so atrocious and so barbaric that no civilized person could be expected to endure them without suffering mental distress, [a] jury may find as a matter of fact that ‘severe’ emotional distress resulted.” Reagan, 70 Md.App. at 513 , 521 A.2d at 1251 (citing National Sec. Fire & Casualty Co. v. Bowen, 447 So.2d 133 (Ala.1983)). See also, Oxman, “Genital Herpes,” at 1049 (enough physical and psychological