Between 1982 and 1983, plaintiff/appellant Long and defendant/ appellee Adams, both unmarried residents of Cobb County, Georgia, were involved in an intimate sexual relationship, in the course of which appellant allegedly contracted genital herpes from appellee. In 1984, appellant filed a tort action against his paramour, claiming that she negligently and intentionally infected him with the disease and was therefore liable to him for the resulting injury. Appellant alleged that appellee’s actions constituted negligence, battery, and intentional infliction of emotional distress, thus entitling him to special and punitive damages.
At the time the suit was filed, appellee resided in Oklahoma, and she was served with process pursuant tо Georgia’s Long Arm Statute (OCGA § 9-10-91 (2)). Appellee’s answer asserted, inter alia, that the court lacked personal jurisdiction over her and that the complaint failed to state a claim upon which relief could be granted. Responding to her motion to dismiss/motion for summary judgment, the trial court ruled that personal jurisdiction did exist but that the complaint failed to state a claim upon which relief could be granted, and granted appellee’s summary judgment motion. Plaintiff/appellant Long appеals from the adverse judgment; defendant/appellee Adams cross-appeals from the finding of personal jurisdiction. Having consolidated the two appeals, we reverse the grant of summary judgment and affirm the finding of personal jurisdiction.
1. Appellee contends that the trial court could not exercise jurisdiction over her because she, as a nonresident of Georgia, did not have the requisite contact with the forum state. OCGA § 9-10-91;
Shellenberger v. Tanner,
2. Appellant enumerates as error the trial court’s grant of summary judgment against him and its finding that he failed to state a cause of action. The question whether or not an unmarried person who contracts genital herpes from his unmarried sexual partner can sue for damages under a negligence theory being one of first impression in this stаte, we examined the relevant case law in other jurisdictions for guidance. In
Duke v. Housen,
“At the very foundation of plaintiff’s сlaim against defendant lie the principles of the law of tort. One who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actiоns. [Cits.]” Id. at 340. The court went on to set out the necessary elements of an action founded on negligence as being: (1) a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct for the proteсtion of others against unreasonable risks; (2) a failure on his part to conform to the standard required; (3) a reasonable close causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting to the interеsts of another. Id. at 334, 341.
To maintain a cause of action based on negligence in Georgia, a plaintiff must allege these same elements.
Lee St. Auto Sales v. Warren,
First, what legal duty, if any, is owed by one sexually active person to another? The duty owed is the same one that every individual in this state owes another: the duty to exercise ordinary care not to injure others. Having established that standard of care to which appellеe was required to conform, we move to the second element — failure to conform to the standard. Appellant alleged that appellee intentionally and negligently had sexual intercourse with him at times when she knew she was infected with gеnital herpes, a contagious ve
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nereal disease, and that he was not informed of her condition at the time the acts occurred. Since the record before us does not contain any sworn testimony to refute the allegations (althоugh the existence of a deposition is alluded to), the trial court was required to regard the allegations in the light most favorable to the appellant, with all doubts resolved in his favor, on the appellee’s motion to dismiss.
Harper v. DeFreitas,
The penultimate element, a close causal connection between appellee’s conduct and apрellant’s injury, is established. It is commonly known that herpes is a contagious and incurable disease, transmitted primarily by intimate sexual contact, although, as we will discuss later, appellee argues otherwise. Nowhere in the record does appellee assert that she did not have genital herpes during the period of her relationship with appellant. Rather, she argues that she was not obligated to disclose her condition to him. Since it is undisputed that appellee had the disease during the time in question, engaged in sexual intercourse with appellant, did not disclose her condition to him, and that he later contracted the disease, we can conclude that a causal connection existed between her conduct and his injury. We can also dispose of the last element, recognizing that appellant has suffered damage by being afflicted with an incurable disease.
In light of the foregoing analysis, we conclude that appellant stated a cause of аction based on negligence. Since it does not appear to a certainty that appellant would not be entitled to relief under any state of facts which could be proved in support of his claim, appellee’s motion to dismiss should not have been granted.
Harper,
supra. Nor should summary judgment have been granted, since there was no plain, palpable, and indisputable evidence in favor of either party.
Manheim Services Corp. v. Connell,
It should be made clear that this court is not stating here that herpes viсtims have a specific duty to warn any person of their condition; however, they, like all citizens, are to be guided by those considerations which ordinarily regulate the conduct of human affairs, and they may be sued in this state for negligence in the omissiоn to do something which a reasonable person would do.
Johnson v. Landing,
3. The trial court, in its order dismissing appellant’s complaint, stated that “[a] plaintiff who receives an injury as the result of violating a criminal statute cannot be said to possess a ‘private legal right.’ The court finds that there is no valid basis in law for the duty which the plaintiff seeks to impоse.” Appellant enumerates those holdings as error, and we agree. Appellant and appellee, both unmarried adults, engaged in consensual sex in violation of the criminal fornication statute, OCGA § 16-6-18. Appellee contends that aрpellant is therefore precluded from pursuing his civil action for damages against her due to his intentional violation of the criminal law.
It is well established that a person can recover in tort for injury suffered as a result of his own criminal activity. Seе
McKinsey v. Wade,
Since the few facts we have do not prove that either party was negligent, there is no basis for debarring appellant from recovery at this stagе of the proceedings. Moreover, to extend the trial court’s ruling to its logical conclusion would prevent, for example, pregnant, unmarried, women from recovering their expenses for pregnancy and childbirth from the fathers of their children, contrary to the public policy of this state. While we do not here condone the sexual mores of our time, neither can we ignore the realities of present day life, disheartening though they may be. A New York court, faced with similar circumstances, held that although it appeared that the sexual encounters of a married man and an unmarried woman constituted the crime of adultery, the woman could maintain a civil action against her partner for his negligent misrepresentation of sterility, on which she relied to her detriment. The court found that since the innocent spouse was not a party to the action, the equitable doctrine of “clean hands” was inapplicable. The defendant was held liable for the costs of his рaramour’s abortion, including lost work days and pain and suffering.
In re Alice D. v. William M.,
In light of the foregoing and our conclusion in Division 2 that appellee owed a legal duty to appellant, we hold that the trial court’s conclusions were erroneous.
4. As noted earlier, appellee argues that genital herpes is not a disease, but that if it is, appellant produced no evidence that it is
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infectious, incurable, and venereal in nature. She asserts that it is by law not a venereal disease, because it is nоt included in OCGA § 31-17-1. We reject this argument, as did the court in
Kathleen K. v. Robert B.,
In accordance with the public policy of this state to reduce the incidence of venereal diseases, the injury appellant allegedly suffered is one for which he should be compensated if the case can be properly proved. “Appellant has alleged that [he] sustained physical injury due to [appellee’s] tortious conduct in either negligently or deliberately [infecting him] with venereal disease. The disease which appellant contracted is serious and [thus far] incurable. The tortious nature of [appellee’s] conduct, coupled with the interest of this state in the prevention and contrоl of contagious and dangerous diseases, brings appellant’s injury within [the sphere of compensable physical injury].” Id. at 276.
Judgment reversed in Case No. 70059. Judgment affirmed in Case No. 70060.