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J. B. v. BOHONOVSKY

November 3, 1993

J. B., Plaintiff,
v.
ANTOINETTE BOHONOVSKY, as Executrix of the Estate of J. K., Defendant.



The opinion of the court was delivered by: H. LEE SAROKIN

 Sarokin, District Judge

 Before the court is defendant's motion for summary judgment, for an order compelling certain discovery responses, and for sanctions pursuant to Rule 11. *fn1"

 Introduction2

 There can be little doubt that a person who knows that he or she has AIDS and misrepresents or conceals that knowledge from a sexual partner who then contracts AIDS as the result of unprotected sex, should be liable for the injuries sustained by that partner. A person who knowingly has AIDS, has a duty to disclose it and take the steps necessary to protect against its transmission to others. In this matter, the evidence presented indicates that although plaintiff was exposed to AIDS, he has not contracted it; and that because of the lapse of time, it is probable that he will not do so as the result of his relations with the decedent. Plaintiff, nonetheless, claims that the emotional distress caused by the fear of contracting AIDS and knowledge of the duplicity of his longtime lover is sufficient to warrant recovery, even if the illness never occurs and is not likely to occur. The evidence submitted suggests that the decedent specifically denied having the disease, explained away his symptoms, and intentionally misled the plaintiff while continuing their relationship over many years.

 It is not unreasonable to infer that upon learning that one's lover has AIDS, there is a period of intense anxiety awaiting the result of one's own tests over an extended period of time. But that inference alone is not sufficient to support a claim for emotional distress. What makes that claim viable is the intensity of the distress, not its mere existence. Thus in order to withstand defendant's motion for judgment, plaintiff must come forward with competent evidence regarding the severity of his emotional distress, and he has failed to do so.

 Those who knowingly put others at such grave risk should not escape liability merely by the fortuitous circumstances that their conduct did not result in the actual transmittal of the disease. If nothing else, fear of liability may serve as a deterrent to such hateful conduct in the guise of love. Properly supported by competent evidence and medical opinion, claims for emotional distress are and should be cognizable. In this matter, however, plaintiff has failed to meet the threshold necessary to permit this matter to go forward.

 Thus, although the court has great sympathy for the anguish plaintiff undoubtedly suffered as a result of this betrayal, his claim must be dismissed because of his failure to document his claim either through his own sworn statement or that of a medical expert.

 Background

 Plaintiff J. P. commenced this action in January of 1992 alleging various causes of action against the Estate of J. K. ["decedent"]. For the purposes of this motion, the following facts are undisputed unless otherwise noted.

 In January of 1986, decedent began having sexual relations with plaintiff. In the summer of 1986, decedent tested positive for the Human Immunodeficiency Virus ("HIV"). In or about late 1987 or early 1988, decedent was diagnosed as having Acquired Immune Deficiency Syndrome ("AIDS"). Decedent continued to have sexual relations with plaintiff until July of 1990. He did not disclose his medical status to plaintiff during the four year period in which they were intimate. Both decedent and plaintiff had other sexual partners during this four-year period. Plaintiff did not learn that decedent had contracted AIDS until September 4, 1990. He died from his condition on October 16, 1990.

 Plaintiff has been tested for the presence of HIV on various dates over the last five years: June 7, 1988, June 5, 1989, June 5, 1990, September 14, 1990, July 2, 1991, and February 11, 1992. On each occasion, plaintiff has tested negatively. Defendant alleges that plaintiff has continued to engage in homosexual relations with new partners.

 Plaintiff's complaint states four causes of action. Count one alleges that decedent "negligently" engaged in consensual sexual relations with plaintiff without proper precautions and without disclosing his condition. Complt. at 2. Count two alleges that decedent "intentionally" engaged in consensual sexual relations with plaintiff which defendant knew or should have known created a risk that plaintiff would become HIV-infected. Complt. at 3. Count three states that decedent "intentionally" or "negligently" made representations to plaintiff which prevented plaintiff from learning of the defendant's condition and which induced plaintiff to engage in activity which exposed him to HIV-infection. Complt. at 4. Count four alleges that decedent breached his fiduciary duty to plaintiff by not disclosing the fact that he had tested positively for HIV and that he was subsequently diagnosed with AIDS. Complt. at 5.

 In his prayer for relief, plaintiff seeks to recover compensatory and punitive damages for his medical testing expenses, for the intentional tort of exposing him to HIV infection, for the enhanced risk that he will contract AIDS, and for the intentional infliction of emotional distress. *fn3" Defendant has now moved for summary judgment on all counts of the complaint. ...


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