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Hamblen v. Davidson11/8/2000
This appeal arises from a personal injury suit in which Plaintiff alleged that her ex-husband had negligently infected her with the virus which causes genital herpes. The trial court granted Defendant's motion for summary judgment, finding that: (1) the one-year statute of limitations, T.C.A. ยง 28-3-104, barred Plaintiff's claim; (2) Plaintiff failed to establish that Defendant knew or should have known he had herpes, and owed her a duty to warn her of his condition; and (3) Plaintiff failed to establish that she contracted the virus from Defendant. Plaintiff appeals.
Tenn.R.App.R.3 Appeal as of Right; Judgment of the Trial Court Reversed
W. Frank Crawford, P.J., W.S., delivered the opinion of the court, in which Alan Highers and David Farmer, joined.
OPINION
Plaintiff, Pam Hamblen, sued her ex-husband, defendant, Richard Davidson, for damages resulting from his negligence in infecting her with the genital herpes virus. From the order of the trial court granting defendant summary judgment, plaintiff appeals. The trial court granted Defendant's motion for summary judgment on the grounds that: (1) the one-year statute of limitations barred Plaintiff's claim; (2) Plaintiff failed to show that Defendant knew or should have known he was infected with the virus which causes genital herpes and therefore owed Plaintiff a duty to warn her of his condition; and (3) Plaintiff failed to prove that Defendant's actions were the proximate cause of her injuries.
On March 11, 1997, Plaintiff Pam Hamblen and her husband, Defendant Richard Davidson, divorced after 22 years of marriage. In October of 1996, Plaintiff discovered that her husband had been involved in an extramarital relationship since October of 1994. Between 1995 and 1997, Plaintiff experienced three "rashes" in her genital tract which she testified were not "severe enough" to cause her concern. Plaintiff's physician, Dr. Robert Cameron, testified at his deposition that rashes of the kind Plaintiff experienced are not uncommon in women, and may be caused by a number of things, including use of deodorants, soaps, perfume, or even wearing tight clothing.
At the time she experienced the first rash, Plaintiff discussed it with Defendant. Plaintiff also testified that, approximately a week and a half before the initial rash, she observed Defendant "doctoring" a similar rash on his penis. At that time, Plaintiff claims Defendant told her he had poison ivy, which he explained he must have gotten when he was golfing, and that he transferred the poison ivy from his hands to his penis when he relieved himself in the woods. Since Defendant often got poison ivy on his outings with the couple's son, Plaintiff testified she did not question Defendant's explanation of the rash. Plaintiff also testified that, on another occasion, she observed a red spot on Defendant's penis, which Defendant claimed was a "scratch."
Several weeks after she discovered that Defendant was engaging in extramarital relationships, Plaintiff asked her physician to give her an AIDS test. The results of that test were negative, and Plaintiff testified that she did not investigate the possibility that she had any other sexually transmitted diseases ("STD's") at that time because she was not "knowledgeable enough" about them. It was not until September, 1997, after seeing a television program on herpes, that Plaintiff approached her physician regarding the rashes. Plaintiff's physician told her to return if she had another rash, and in November of 1997, Plaintiff tested positive for the virus which causes herpes.
Plaintiff has only had one other sexual partner, Mark McCullough. Plaintiff testified that she e
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