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Faya v. Almaraz3/9/1993
however, that there was evidence of physical injury because of the officer's having been bitten and that his physical injury included sleeplessness, loss of appetite, and other physical manifestations accompanying the emotional distress. The officer's physical injury, the court said, was a factor going to the reasonableness of the officer's fear of contracting AIDS for which he could recover damages for emotional distress, even though he tested HIV-negative. The court emphasized that its decision did not permit recovery of emotional distress damages by anyone who merely comes into contact with an AIDS-infected individual; rather,
it said that "recovery of such damages is limited to the situation where the plaintiff is actually exposed to the AIDS virus as a result of a physical injury , and emotional distress, along with physical manifestations of such distress, result therefrom." Id. at 894.
In Carroll v. Sisters of St. Francis Health Services, Inc., S.W.2d (Tenn. App. 1992), certiorari petition filed December 11, 1992, the plaintiff had been pricked by a needle while visiting her sister in the hospital. Even though the plaintiff was unable to show actual exposure to the HIV virus, or that she tested HIV-positive, she sued the hospital for damages which she alleged resulted from fear that she had contracted the disease. In reversing a summary judgment against the plaintiff, the court relied upon Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn. 1982), in which the Tennessee Supreme Court allowed plaintiffs to recover for fear of harm against an exterminating company which had leaked dangerous chemicals into their drinking supply, even though plaintiffs showed no physical symptoms of illness. Laxton specified, however, that "The period of mental anguish . . . would be confined to the time between discovery of the ingestion and the negative medical diagnosis or other information that puts to rest the fear of injury ." 639 S.W.2d at 434.
Explicitly rejecting "the strict rules of actual exposure" required by Burk and its progeny, the Carroll court read Saxton to allow recovery for fear of AIDS even though the plaintiff could show neither actual HIV exposure nor an HIV-positive test. It said:
"We construe Laxton to set a standard of 'reasonableness' of the fear. . . . The gravamen of the action in Laxton was the effect of defendant's negligence on the plaintiffs' state of mind and the Court found under the peculiar facts of that case that they could reasonably have the fear of acquiring serious medical maladies. The court was quite clear, however, that the period of time
considered reasonable for the mental anguish would cease upon information that 'puts to rest the fear of injury .'"
Carroll, S.W.2d at .
See also Castro v. New York Life Insurance Co., 588 N.Y.S.2d 695, 697 (Sup. 1991) (custodian may recover where stuck by a hypodermic needle discarded in the trash of an insurance company office, insofar as she had "a claim . . . tied to a distinct event which would cause a reasonable person to develop a fear of contracting a disease like AIDS").
In the instant case, we cannot say that appellants' alleged fear of acquiring AIDS was initially unreasonable as a matter of law, even though the averments of the complaints did not identify any actual channel of transmission of the AIDS virus. But Burk's requirement that plaintiffs must allege actual transmission would unfairly punish them for lacking the requisite information to do so.
Appellants' continued fear of contracting AIDS may, however, be unreasonable after they tested HIV-negative upon learning of Dr. Almaraz's illness, which was well o
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