*1
Teresa LOOSEN, Appellee.
Marette
No. 86836.
Supreme Court of Oklahoma.
July Aug.
As Corrected *3 contends that Loosen
lant’s She husband]. warn failed to Lockhart’s husband not affirmatively contagion commu- but also her did not have nicated him she sexually [STD]. transmittable diseases simplex herpes vi- later contracted Lockhart alleges Appellant II from her husband. rus liaison Loosen knew that her sexual was extramarital Mr. Lockhart identity. of wife’s aware his for the harm Seeking redress *4 contracting herpes, Lockhart related to against upon brought an action Loosen based fraud, negligence, of the intentional theories distress negligent infliction of emotional and per for se. Loosen moved dismissal, (1) urging that David suit’s the infidelity proximate the cause Lockhart’s (2) no his harm and that she owed of wife’s Barnes, Smith, Smith & E. of Michael duty to The trial court of care the wife. Lewis, P.C., City, Appellant. for Oklahoma prejudice case and this the with dismissed Chubbuck, Hoehner, of Bullard Daniel J. Appeals appeal of Civil followed. The Court Hoehner, City, Appellee. for Oklahoma & affirmed on all dismissal the below [COCA] liability except negligence. Loo theories LAVENDER, Justice. we sought granted.1 which sen certiorari appeal 1 Dispositive Loosen’s factual issues which whether there are II fact resolved the trier of should have been OF REVIEW THE STANDARD prejudice. her claim with before it dismissed princi- Application of traditional common-law ¶ 4 A trial court’s of an dismissal require Lockhart’s ples of causation upon for to state a claim which action failure remanded to the district court claim be de granted can is reviewed novo.2 relief be proceedings. further assay sufficiency plaintiffs To the cognizable claim we petition legally to a state I possible relief is must determine whether proved be any of facts that could under set AND PROCEDURAL HISTORY FACTS allegations.3 the pleadings’ consistent with which can be All inferences conclusions alleges 2 that Loosen—know- Lockhart evidentiary materials must herpes engaged in from ing genital sexu- deduced she had — light in the most favorable to [appel- be drawn with David Lockhart al intercourse Trust, 875 petition v. Bank and P.2d for certiorari Dev. American In answer to the her Leonard, (Okla.1994); holding Hough 867 did not contest the COCA’s v. P.2d Lockhart 413 (Okla. 1993). of the trial which sustained the correctness 438 inten her claim on fraud and court’s dismissal of theories. tional-infliction-of-emotional-distress Eateries, Inc., (Okla. Hayes 780 905 P.2d bars from re- The settled-law-of-the-case doctrine D.H.S., 1995); Nat. Bank P.2d Indiana (a) finally litigation in the review issues settled Akin, (Okla.1994); Gay v. 766 P.2d (b) party process aggrieved has that the or those (Okla.1988). 989 n. appel timely in the course of the failed to raise Hence, liability these late contest. theories Ford, Doenges 913 P.2d Bros. 3. Delbrel cog beyond scope reviewing of our are now Bank, (Okla.1996); note Co., Ind. Nat'l. Pipe Nichols v. Mid-Continent Line nizance. Jones, Niemeyer Fidelity and Guar. (Okla.1996); U.S. (Okla. Jackson 1990). (Okla. 1995); n. 37 Morrow Further, non-moving party.4 to language, given plain resist mo statute’s when its necessary tion dismiss it is not for a ordinary meaning, yardstick is the for divin- identify plaintiff specific theory either objective.11 ing legislative the drafters’ Here identify remedy recovery or to correct or intent language becomes clear when the which relief to entitled.5 he/she entire, key phrase expose 1-519 —“to person by copulation other the act or ¶ Generally motions to dismiss are [Emphasis intercourse” added] —is with viewed disfavor. Under most circum legislative pro- considered. The enactment plaintiff’s petition stances dismissi persons active, scribes transmittable ve- (1) cognizable theory ble for want legal of a nereal engaging diseases in sexual in- (2) liability for insufficient facts under persons. tercourse with parties other The theory.6 the advanced
whom the protect act intends to are those person with whom an copu- Ill would infected impose upon late. statute does not A THIRD PARTY MAY NOT PREDICATE infected to communicate the A NEGLIGENGE-PER-SE THEORY contagion partners fact their to their or to LIABILITY A OF ON VIOLATION OF persons. requires third them not to en- 63 O.S.1991 1-519’s PROVISIONS gage in sexual intercourse their while condi- *5 ¶ part 6 Plaintiff’s claim in rests is tion infectious. upon alleged statutory Loosen’s violation of a which, asserts, duty7 ¶ Lockhart constitutes 8 party Lockhart —a third under this negligence per se. A statute’s violation is aegis may statute’s not negligence- assert a — negligence per inju se if deemed the claimed per-se theory liability against of Loosen (a) (b) violation, ry by was caused the law’s upon § based a violation of 1-519’s terms. type prevented by was of the to be intended engage Loosen did in not sexual intercourse statute, (c) injured the party and the was a her and no statutory had affirmative of the meant protected member class to be duty to inform contagion, Lockhart of her if by the statute.8 any. § If language the onus of 1-519’s rests anyone, upon upon plaintiff’s it rests the 7 legislative Discernment of husband. straightforward When the lan- required place plaintiff intent is to the within guage considered, of the act is it persons the of is protected by class to be obvious meant (1) plaintiff that § the of 63 the is not ambit O.S.1991 1-519.9 It is the a member of the protected ascertainment of intent meant by which is the class to be the statute’s statutory (2) cardinal rule of A language construction.10 language and the act’s does not 350, Miller, M.D., Inc., Hoyt liability 921 P.2d v. Paul R. venereal disease or to to contract the 4. (Okla.1996); 353 [Emphasis Bryan same.” Memorial added.] Frazier 281, (Okla.1989) Auth., 775 P.2d 287 Hosp. 8. Boyles 619 P.2d v. Oklahoma Natural Gas 613, (Okla.1980); 618 Loyd, Elam 201 Okl. Bank, note 2 at supra Ind. Nat'l. Great 5. 222, (Okla.1949). 204 P.2d 282 See also Dabney, 846 P.2d Plains Federal S & L v. Lagaly, 144 F.2d Earl W. Baker & Co. J., (Okla.1993) (Opala, concurring). (10th Cir.1944). Bank, supra 6. note 2 at 375. Ind. Nat’l. pertinent 9. For the terms of 63 O.S.1991 1- see 7. note statutory duty 7. asserted to have violat- been ed arises under the of 63 terms O.S.1991 1- Inc., Corp., Petroleum Co. Great Nat. Riffe provide pertinent part: 519 which in (Okla.1980); Stemmons, Inc. persons Marriage "Diseased 301 P.2d Corp., v. Universal or sexual inter- C.I.T. Credit — (Okla.1956). course felony be shall unlawful and a person, becoming after infected and Mortg. City, Tinker Inv. & v. Midwest being pronounced (Okla.1994); discharged before Hill, cured City Bethany of by P.2d.1364, physician writing, marry any (Okla.1973); a in to other Applications person, expose any person by or to other Turnpike Authority, the Oklahoma (Okla.1954). copulation to act such or sexual intercourse ¶ 10 For an intervenor’s act to care is owed to some- which create partner. “supervening and cut off a sexual become a cause” one other than
possible liability original negligence, for the (1) independent primary of the it must be IV (2) adequate bring negligence, be of itself (3) complained injury of and not about the CLAIM NEGLIGENCE-RELATED THE reasonably event.17 When be a foreseeable qualifies supervening such an act as a A cause, into a original negligence the mutates as is no mere condition and a matter of law extant 9 Under Oklahoma’s however, When, in longer the actionable.18 the three elements jurisprudence essential tervening reasonably act is a foreseeable (1) prima negligence facie case are: consequence primary negligence, the protect the the duty owed defendant lia wrongdoer will original not be relieved (2) injury, properly plaintiff from failure to Also, bility.19 primary where act of (3) inju perform duty, plaintiffs superseded by is not a second negligence ry being proximately caused the defen i.e., operate continues to concurrent cause — re negligence dant’s breach.12 Actionable damage ly, so that is the result of both quires act be the complained acting in concert —each act causes liability is cause of the harm for which direct proximate and the regarded as cause Further, imposed.13 whether sought to be wrongdoers jointly severally lia will be complained proxi is the plaintiffs compensable harm.20 ble for the plaintiffs injury depen mate cause14of the (for compensation harm upon dent which Traditionally, causation sought) being the result of both the natu *6 the realm of negligence a action lies within probable pri consequences ral and of the fact, negligent not law.21 Whether a event’s This mary negligence.15 latter determination consequences rea injurious could have been assaying foreseeability is to the of the critical presents jury sonably question.22 foreseen negligence of the and injury as a result initial intervening an act is foreseeable prima facie Whether hence to establishment of a by an determination case.16 also calls for evaluative 392, (Okla. Trust, 455, (Okla. Dworman, 12. 732 456 17. Minor v. Zidell 618 P.2d 394 Lay P.2d v. Inc., 1987); 1980). 652 Thompson Presbyterian Hosp., v. 260, Owen, (Okla.1982); 579 263 P.2d Sloan v. (Okla.1977); Tacker, v. 512 P.2d 812 Nicholson 264; Trust, at supra 18. note 12 Thompson, Zidell 156, (Okla. 1973). P.2d 158 supra note 17 at 395. 342, (Okla. Keuchel, 13. 847 P.2d 348 v. Graham 733, Syl. 733-34 Gallagher, 19. Turner v. 371 P.2d 1993); note 12 at 263. Thompson, (Okla. 1962). 1 proximate 14. event’s is that "which in An cause 736; sequence, natural and continuous unbroken note at Gallagher, supra City 20. 19 Altus cause, 288, 128, (Okla. produces independent and Wise, the event Okl. P.2d 131 v. 193 143 Mount, 1943). which the event not have oc- without would 155 Ry. Co. v. See also Oklahoma Inc., 11, 275, (Okla. 1932); 806 Sports, curred.” Johnson Mid-South v. P.2d Okl. 9 13 see also 1107, (Okla.1991) [quoting 1109 P.2d Gaines v. 322 Ingram, v. Missouri-Kansas-Texas Railroad 126-27 Apartments, 750 P.2d (10th Cir.1963). Providence 291 F.2d (Okla.1988)]. 1020 Mings, 21. Dirickson v. 910 P.2d 15. 201 Okl. Norman Scrivner-Stevens (Okla. 1996); Bank Securities v. Plaza Bradford (Okla.1949). 279 "It is not 204 P.2d (Okla.1982); Trust, P.2d Ather prove enough that the is the natural accident Davis, ton, supra at note 16 Smith consequence negligence. of the It must also (Okla.1967). P.2d probable consequence.” have been the Id. P.2d at 279. (Okla. Kilcrease, P.2d 521 England (Okla. 1969); Devine, Ryan, Oil Continental Co. Atherton (Okla. 1963). 1979). logical the “where the record and the that trier inferences can be of fact.23 together propriety with all inferences which drawn from them that evidence the of the properly deduced therefrom is insuf trial dismissal negli- court’s of Lockhart’s gence show a causal connection pauci- ficient to between claim is determined. There is a injury” wrong and the alleged ty stipulated that the facts in record. Loosen proximate question issue cause becomes a herpes only that she purposes has of the of law.24 stipulate motion to dismiss. She did not that
she had told Mr. not Lockhart this fact. B The record not does evidence whether Mr. of, developed Lockhart symptoms had or ¶ 12 principles The common-law had, herpes engaged knew that he he before causation, here, applicable succinctly were plaintiff. in sex with the Keuchel, summarized Graham v. (Okla.1993), where Court —in assess ¶ 13 An essential element of liability original ing wrongdoer between an proof duty Lockhart’s is that a of care is opinion to in [referred and an intervenor its negli owed to her Loosen. Actionable party”] as “third —held: gence that requires purported Loosen’s fail person generally A is not deemed liable ure to Mr: contagion inform Lockhart of her party’s for a common law third deliber- plaintiff’s injury— be the direct cause of the person’s A ate act. third intentional tort i.e., herpes. the contraction of While nor supervening is a cause harm that mally duty Loosen would owe no care to negligent if results —even the actor’s con- wife, party, every person a third is under presented duct created situation that a duty in using to exercise due care that opportunity for the to be tort committed— which controls not injure so as he/she the actor unless realizes should realize another.25 Loosen If knew or should reason person that might the likelihood the third ably herpes26 have known that she had A negligent the tortious act. commit actor copulated during Mr. period Lockhart anticipate wrong- not bound to another’s infectious, when she was under common-law ful the latter has act discovered the after principles had a him she to warn of her danger negli- that arises from the former’s Further, contagion. if Loosen knew that Mr. gence. Lapse other time or reason— Lockhart copulating person with another as, e.g., such person’s discovery the third identify [whether could original actor’s or the *7 person not], was married to or Lockhart it assumption former’s deliberate control reasonably would be to foreseeable Loosen may duty cause the to situation — i.e., her silence about infectious state — another, prevent harm to threatened duty breach of the to care owed her sexual conduct, original negligent the actor’s to partner result in the transmittal of —could shift the person. from that actor to third herpes person. to that third Under this person’s happens When this the third fail- hypothetical scenario, factual the trial court prevent ure to the harm threatened be reasonably could determine that it was fore supervening cause. [Citations omitted.] proba seeable to Loosen that a natural Id. at 350-51. consequence ble of her would be silence the through principles the lens of highly these transmittal this contagious disease27 plaintiff. examination the facts as disclosed to the this Jackson, arise, 23. duly note 1 at see 26. persons also W. In order for those bearing duty’s knowledge the onus have op must Page al„ et Keeton Prosser and Keeton on the Law (5th danger 1984). that their acts or omissions involve ed. Torts another. Larrimore American Nat. Ins. (Okla.1939). 184 Okl. Smith, supra [quoting 24. note 21 at 800 Leslie v. Hammer, Syl. 194 Okl. Herpes, country’s prevalent sexually the most (Okla.1944)]; Norman, supra, note 15 at 278. disease, currently transmitted affects 31 million many people Americans—ten times as as were Ingram, supra note 20 at 291. known to the have disease in 1966. Sharlene A. ¶ C did not know 14 If Loosen contagion, her know of her have reason to ¶ asserts the 16 Lockhart the level of action not rise to silence would Appeal’s decision her to Court of Civil allows (1) If a matter of law. negligence as able proceed against negligent-inflic Loosen on a Mr. Lockhart of her disease Loosen told theory liability tion-of-emotional-distress (2) wife, or with his engaged he in sex before liability separate theory negli from as a contracted a knew that he had Mr. Lockhart gence. This is not so. Under Oklahoma’s engaged he sex venereal disease before causing jurisprudence negligent the of emo wife, poten Loosen’s silence—which with his tort, independent is not an tional distress30 proximate cause tially could have been the negligence.31 is in the tort of but effect into a mere injury evolve the wife’s —would upon either of This is so because condition.28 occurring, Mr. Lock- suggested the facts V to cause adequate be of itself hart’s act would Also, injury. if Mr. Lockhart CONCLUSION plaintiffs knowledge potential armed with of his
were legislative Unquestionably there is a infection, reasonably it would not be foresee spread of prevent to control and intent engage in sexual relations able that he would accomplish pur- To venereal diseases. copulation his plaintiff and his with the pose Legislature prohibited has infected supervening If become a cause.29 wife would copulating. If is to be persons from there are estab either of these factual scenarios proscrip- §in found a of care 1-519’s is shown to have no knowl lished or Loosen tion, person with it is owed to the whom sex with edge contagion of her when she had engage in sexual in- would diseased Lockhart, no proximate cause would Mr. person’s succeeding and not to that tercourse liabil longer jury question be a and Looseris partners people these sexual —whether as ity properly by the court could be reached wife/husband, significant other other and/or of law. question paramour. of facts in this case ren- 15 The dearth Today’s pronouncement is not an ex- Lockhart’s the trial court’s dismissal of ders liability for an indeterminate tension of tort premature. Upon the before us claim record par- indeterminate class of third time to an say to Lockhart court cannot that relief liability must be to Lockhart ties. Loosen’s impossible facts and under the disclosed all, if common- predicated, on traditional the inferences which can be deduced If principles proximate cause. Loosen law to the them. Her case must be remanded identity recognized plaintiffs knew the findings court for additional of facts district part- whom her sexual her as someone with knowledge greater of and which define tell copulate and she did not ner would later relationship parties. The fur- between these engaged in herpes before he sex him she had predi- development required of facts is a ther that a person, it can be found with this third princi- application cate to of the common-law *8 probable consequence her si- natural and It ples of causation delineated above. of communicate is that Lockhart would properly decided lence then that the trial court can contagious disease to the third cognizable highly Lockhart has asserted a whether the criti- Loosen’s non-disclosure person. negligence. claim for of causes Liability Sexually Oklahoma abolished the civil McEvoy, In 1976 “Tort Transmitted 1994). of affections and seduc- Diseases", (Summer, of action for alienation Brief 14 23-SUM Hence, § spouse. 8.1. 76 O.S.1991 tion of her distress attributable to Lockhart’s emotional evolution of a cause 28. For a discussion of the compensable. is not husband’s affair with Loosen condition, Thompson, supra at note 12 into a 264; see 403, (Okla. Dunkley, 405 v. 474 P.2d Thur Medical, Baptist 916 P.2d 31. See v. Kraszewski Norman, 1970); supra 204 at 279. note 15 P.2d 241, (Okla.1996). further discus- n. 1 For 243 tort, dependent of this see of the nature sion 264; 1064, (Gupta), Thompson, supra Burgess Superior Zidell 2 Cal.4th 29.See note 12 at v. Court 1197, 615, (1992). Trust, Cal.Rptr.2d 1200 supra 831 P.2d note 17 at 394. 9 1082 ALA, Justice, her be deemed a dissenting. cal could OP fact infection ordinary care owed under the breach ¶ 1 Concluding that claim wife’s circumstances and a direct cause of Lock- against infection-bearing her husband’s plaintiff infection. The could then be
hart’s
tort,
paramour
is an actionable
the court
legally cognizable
said
have asserted
prius
the nisi
reverses
dismissal
and
order
claim.
the cause for
proceedings.
remands
further
today’s pronouncement.
I
from
recede
¶
19 Under
established
criteria
in
jurisprudence
light
extant
Oklahoma’s
I
drawn
inferences which can be
facts,
the record
the trial court’s dismissal of
¶ 2
TRIAL
THE
JUDGE’S DECISION
claim cannot be sustained.
Lockhart’s
THE
FOR
DEFENDANT SHOULD
be said that
not available to
cannot
relief was
BE AFFIRMED
AON THEORY NOT
any
Lockhart under
set of facts
could be
AT
URGED
NISI PRIUS
proved
pleadings’ allega-
consistent with the
.¶
Every
judge’s
3
trial
decision comes
or the
be drawn
tions
inferences which could
a court
review
presumption
clothed with a
from them.
supported by
If
correctness.
law and
evidence,
prius
judgment
nisi
will be
¶
Upon
granted,
20
previously
certiorari
if it
affirmed even
was based on an incorrect
THE COURT OF CIVIL APPEALS’ OPIN-
theory
party
and neither
tendered below
IS VACATED
AND THE
ION
IN PART
analysis
appropriate
applicable
law.1
DISTRICT COURT’S DECISION IS RE- Criminal conversation is the
anchor of
true
VERSED IN PART AND THE CAUSE today’s claim.2 As that
tort
common-law
no
REMANDED
PRO-
FOR FURTHER
remediable,
longer
prius
the nisi
decision
NOT
CEEDINGS
INCONSISTENT WITH to
the wife’s
dismiss
action
af-
should
TODAY’SPRONOUNCEMENT.
§
firmed. 76 O.S.1991 8.1.3
SUMMERS, V.C.J.,
KAUGER, C.J.,
21
II
HODGES,
WATT,
HARGRAVE and
JJ., concur.
¶ 4 THE
LINK
HISTORICAL
BE-
TWEEN CRIMINAL CONVER-
WILSON,
22
J.,
ALMA
concurs
AND
SATION
SEDUCTION
part;
part.
dissents in
¶ 5 Criminal conversation and seduction
JJ.,
OPALA,
23
bound,
other,
SIMMS and
dissent.
are
one to the
their common
23,
judgment
(1918);
1. This court will
correct
on
23-27
W.
Prosser,
of Torts
Law
affirm
applicable theory.
124,
(5th
1981);
Bivins v. State ex rel. Okla
pgs.
Lipp-
915-30
ed.
Jacob
5,
456,
Hosp.,
man,
homa Memorial
465;
services.6 Ill ¶6 tortious interference All actions for ¶ 8 STATUTORY ABROGATION OF lay in person’s marriage a relation tres- CRIMINAL CONVERSATION IS was treated as pass vi et armis. The wife ALL-INCLUSIVE services, servant; a loss of her her husband’s party’s a entice- when occasioned third gravamen 9 The of this claim is wife’s servant, ment, recoverable. Much like a herpes) (genital harm from venereal disease per- regarded wife was as her husband’s alleged to have been contracted from the property. sonal in turn came to be infected husband who through para- with the criminal conversation developed actions to make mar- Two contagious mour-defendant. The wife’s con- at common riage interference remediable damage enticement, dition is but an element of her from these, called law.7 The first the defendant’s criminal conversation. Be- inducing lay for a wife to leave her husband. 8.1, § abrogated by cause that delict stands metamorpho- Enticement later underwent damage that all the elements of would have present-day sis into alienation affections.8 claim, by the abolished if it been recoverable The second of these torts was called seduc- remediable, latter, were still are now damnum abs- The in which no element of tion. que injuria.11 physical separation of from his the husband Shaw, 179, 899, supra Lynn note 4. 1980 OK 620 P.2d 902. 7. VI. 2. Prosser, According teaching Lynn, to the seduction and Shaw, 4; conversation are so intertwined that se- criminal Lynn supra note see also Bladen v. 8. abrogation by provisions Sallisaw, of 76 O.S. duction’s Presbyterian 1993 OK First Church of § 8.1 criminal conversation. 105, 789, also abolishes 796. 857 P.2d clearly incorporated latter is within the term The seduction. exactly the 9. Criminal conversation consists of Adultery elements as seduction. is the sine same provisions supra § qua term, 5. For the of 8.1 see note 3. The former non of criminal conversation. law, may used more often in criminal regarded as the in the tort context functional Annot., Alienation of Affections of Child or 6. See Shaw, Lynn equivalent supra of the latter. Parent, (1974). early 60 A.L.R.3d The note 4 at 90Í. harm to the common-law tort remedies for spousal status are an offshoot from the master’s Shaw, Lynn supra away note at 903. against parties enticing action third his depriving him of their services. W. servants 124 at The note 915-16. explanation damage from vene- Prosser, 11. For an provisions disease, which are declar- of O.S.1991 through inter- real contracted very subject, atory course, of the common law on this may be recovered in an action for se- are: "proximate consequence” of duction as the Kidney, copulation, 222, actionable see Abrahams v. rights personal relation forbid: (1870). Am.Rep. 104 Mass. wife, from his 1. The abduction of husband damage absque injuria parent Damnum means with- from her husband or of a wife (actionable) legal wrong. v. Hold out a Houck his child. Corp., 462 n. a child Oil 1993 OK 2. The abduction or enticement of Getty guardian Co. v. Oil parent, entitled to St. Paul Fire & Marine Ins. from a or from 915, 920; Co. custody, Davis Oil a servant from his master. 1989 OK its or of Cloud, injury 1986 OK 3. An to a servant. *10 repel
IV be said to the concuree’s attack on this legal dissent’s soundness and to show that only legitimate solution to the moral THE CONCUREE’S ASSAULT must, posed by problem at dilemma hand DISSENT’S LEGAL ON THIS all, if through come an amendment SOUNDNESS § exception 8.1 that would create an for dis- analysis, 11 The coneuree’s while mor- ease-transmitting criminal conversation. ally appealing, legally unpersuasive. is apologia 13 The concuree’s other also is Plaintiff seeks to recover ex delicto. Her impermissibly flawed because it dichotomizes damage of a It consists venereal disease. single statutorily and indivisible class of by was transmitted her husband who had abrogated criminal conversation tort. With- it allegedly contracted from the defendant. support out a scintilla of textual in the con- The defendant’s adulterous intercourse with statute, 8.1, trolling § 76 O.S.1991 treated as plaintiffs husband —the claimed source of only abolished are those acts of criminal clearly plaintiffs is not a tort for infection — by conversation which no venereal disease plaintiff may which the seek redress. The spread. legal came to be Preserved injurious consequence from something statutorily cop- extinction is that immunized absque injuria. not actionable is damnum knowledge ulation in which the actor’s of his ¶ 12 Criminal conversation consists at (or her) capacity to transmit a disease can be common law sexual intercourse with a approach pretends away shown.13 This to do person spouse. married other than the actor’s gravamen with intercourse as the tort’s against party by It is remediable the third an offending partner’s to substitute the sexual wronged spouse. action of the All acts of completely scienter aas tort severable from that fall under this rubric have- intercourse criminal conversation.14 No matter what placed by been statute dehors the bounds of used, camouflage may verbal intercourse culpability. § delictual abrogation The 8.1 gravamen remains the of the tort crafted for entirely unqualified and all-inclusive. Em- by today’s opinion. this case That is how the immunity purview braced within its are all passed disease is said to have the de- disease carriers who acted sans or with through plaintiffs fendant husband to the pretends scienter.12 The eoncuree that the plaintiff. Equally irrefutable under the sce- liability recognized in this case is not within by nario tendered this' case is that the inter- range the immunized 8.1 because here alleged plaintiffs course as the source of protects court’s tort from disease infection copulation is her husband’s with the spread against rather than the invasion of a act defendant —an of criminal conversation patently marital bed. The spe- distinction is clearly lies within statutory abroga- cious spread as well as ludicrous. The tion and hence stands dehors the bounds of accomplished venereal by copula- disease is legislatively recognized culpability. delictual tion, and all sexual intercourse long condemned So as the terms of 8.1 remain un- amended, criminal statutorily conversation is im- there is no room for creating here responsibility, munized from tort judicially legal remedy whether in- give that would fection regardless follows or not and wronged spouse Today’s her moral due. lar- actor’s Nothing really scienter. more gesse need in the name of plainly the common law Guilty knowledge is known reasonably as scienter. State which a “knew or should have Eakin, ex rel. Bar Ass’n v. Oklahoma 1995 OK known.” 22; Dayton 650 n. Hudson Corp. v. Amer. Mut. Lia. Ins. 1980 OK 14.Scienter, court, gauge as used is but a assessing culpability the delictual in terms of or, degree the actor’s of care if infliction was requisite 13. knowledge court describes the willful, then in terms of the offender’s state of infecting partner must have with re- only qualifies transmitting mind. the act of (or her) spect infectious-capacity to his as that *11 to no other than the third- § extends 8.1 mandate.15 offends the upon marriage party intruder the and covers ¶ simply put, in this lawsuit 14 More obligation that actor’s breached once partner plain- against the husband’s spouse. nonparticipating to the The owed herpes nothing genital is tiffs harm from her immunity’s sweep simply is coextensive with damage inflicted -without a more or less than present recognition civilly that no the law’s wrong. of her venereal legal Transmission abstinence runs enforceable of sexual copulation, without did not occur disease wronged spouse from an longer to the infection-bearing intercourse is immun- the stranger marriage. But invading to the let join liability. I hence cannot from tort ized immunity’s there be no mistake about the may criminal conversation the view that § for outer limit. The 8.1 mandate removal that the offend- actionable when it is shown on the of some delicts are anchored spouse by infected an actor who ing catalogue cogni- marriage status from the by the disease inter- knowingly transmitted poses absolutely no zable common-law torts course. individual, impediment by any action to an by single, or harm the married inflicted for V negligent transmission or defendant’s willful through a disease sexual intercourse with SUMMARY short, plaintiff. In the statute has ¶ opinion Today’s makes criminal and, liability a form of status-based erased actionable, again, if in- conversation once respon- of sex-connected tort for assessment ultimately in- tercourse on which it is rested sibility, law’s focus has turned on individ- spouse sexually wronged fected the person-to-person harm-dealing ual acts.17 Legislative abrogation transmitted disease. join today’s pro- 17 I can neither range does not the delict’s abolition confine rejoice its The nouncement nor birth. to but noninfectious extramarital affairs. prius court should affirm the nisi order that by the court in an effort to line drawn for dismissed this claim lack of actionable preserve from extinction some remnant of quality. broadly liability absolutely abolished unequivocal sans in the text of the warrant Justice, SUMMERS, statute, concurring. §
abrogating 76 O.S.1991 8.1. rejected, opinion legislatively a com- 1 The of the Court states that Once by must have mon-law norm not be revitalized for Plaintiff to recover Loosen § to know of her judicial provisions fiat.16 The 8.1 effec- known or have had reason liability engaged in sexual relations tively extinguished all civil that was disease when she by (Emphasis offending borne at common law with Plaintiffs husband. Court). partner wronged simple negligence This a case. spouse’s sexual to the Generally, usually involve spouse every injurious consequence negligence for cases standard, which, have known” copulation extramarital under the ru- the “knew or should conversation, of an was treated as and acts are measured those ordi- bric of criminal reasonably person. spouse’s nary prudent See Although tortious. this claim clear- Stores, Inc., ly range statutorily Ingram abro- 1997 OK falls within the Wal-Mart (material accountability, fact as to wheth- gated civil 8.1 core of known of a immunity range narrow. Its er defendant knew or should have tort is rather to the common law the lowest rank— disease in terms of the actor’s ascribes legislative willfulness. and its after the State’s constitution Wright Newspaper Sun enactments. v. Grove explanation of the common law’s rank 15. For an 983, 987; Inc., Tate v. 1994 OK legislation, see note that is subordinate infra Inc., Browning-Ferris, OK 1218, 1225-26. By of O.S.1991 2 the com- the mandate join analysis the other explicitly that led me to 17.It mon law remains in full force unless abrogated by hierarchy statute. The this case. modified or dissent’s view of legal system’s the state three sources of law *12 condition). patterns “high risk” behavior or life- Prosser & certain See also dangerous (5th Torts, dramatically increasing the of styles chance 182-185 ed. Law Keeton on the of contagious should also (where contracting a disease 1984), discuss the “knowl- the authors determining a factor in what the defen- person): Restatement be edge” of a reasonable (work (1977) purpose (Second) Torts, 8A, 11, “should for the of a 12 dant know” of “intent”, duty plain- “reasonably negligence action or a to warn a as phrases uses such know”, know”, F.Supp. at believes”, “should tiff. Id. 817 1389-1391. to “reason etc.). ¶ appeal in 5 The briefs on are those filed
¶
nor Defen-
neg-
for
the trial court. Neither Plaintiff
presented with a suit
2 Courts
of
briefed the issue on the level
knowl-
of a sexual disease have
dant
ligent transmission
edge the defendant must have to be liable.
have known” stan-
this “knew or should
used
However,
Dimenna,
Meany v.
Plaintiffs brief did cite
v.
160 Misc.2d
Tischler
dard. See
(“The
(1994),
swpra,
opinion using the
or
Meany,
“knew
1004
609 N.Y.S.2d
standard. The Court’s
in
relation-
should have known”
duty
found to exist
has been
authority
opinion
up
weight
lines
of
parties
the defen-
ship
where
between
correct.
stating
that he
in
the test.
or should have known
had
dant knew
disease.”); Meany
v.
communicable
respectfully disagree
I
with one of the
6
(“This
(La.1994),
Meany,
235
639 So.2d
conversation,
criminal
dissents. Actions for
enough evidence from
record contained
affections,
alienation of
and seduction have
reasonably conclude that
jury
which a
could
in
been and remain abolished
Oklahoma.
knew,
known,
Meany
should have
or
Mr.
Presbyterian
Bladen v. First
Church
Sal
putting
suspected that he was
should have
lisaw,
789, 796;
Lynn
1993 OK
by sexual
risk of venereal disease
his wife at
Shaw,
1980
recognized George WATSON, Appellant, Aaron upon pregnancy action based seduction result, gist since “the of the action need not promise Oklahoma, Appellee. under
is the act of intercourse STATE Harris, marriage.” 187 Okla. Johnson MNo. 96-1121. (1940). 239, 102 *13 Appeals Court of Criminal Oklahoma. ¶8 brought today action is not for bed, marriage alteration of defilement of 29, July attitude, spouse’s mental interference with Rehearing Aug. Denied services, nor for an act of inter- a child’s promise marriage. course under
brought negligent of a transmission
disease, recovery sought for the resul- damages flowing
tant illness and therefrom. upon negligent wrong-
The tort based spread
ful of a is well established. disease examples Hoffman, are:
Some Gilbert (1885), (negligent
Iowa
transmission of Hendricks v.
Butcher,
Mo.App.
(1910),
Baker,
(same);
(S.D.N.Y.1884), (whooping cough); Kliegel v.
Aitken, (1896), (ty- Wis. N.W. Crowell, fever);
phoid Crowell 180 N.C. (venereal (1920), disease); S.E. Housen, (Wyo.
Duke v.
1979), Kuklo, (gonorrhea); Earle v. (tu- (1953),
N.J.Super. 98 A2d
berculosis). respectfully today’s I9 submit
opinion way in no resurrects the defunct
actions for criminal conversation or seduc-
tion.
SIMMS, Justice, dissenting. respectfully 1 I must as I be- dissent deciding
lieve the trial court in was correct
there was no actionable in this legal
matter because Loosen owed no I
care to Lockhart. would affirm that court’s
dismissal of Lockhart’s claim for failure to
state a cause action.
¶ 2 I am authorized to state that Justice
Opala joins expressed herein. the views