Opinion
11980/02.
Decided September 16, 2008.
Plaintiffs' motion to restore the matter was withdrawn pursuant to the stipulation of the parties dated July 8, 2008, so-ordered by this Court. Plaintiff shall file a new note of issue and certificate of readiness, and pay the appropriate fee, together with a copy of this order with notice of entry with the Clerk of the Court no later than October 8, 2008.
Upon the foregoing papers it is orderedthat the cross-motions are decided as follows:
Cross-motion by GNC for summary judgment dismissing the complaint and all cross-claims against it is granted.
Infant plaintiff was stuck by a discarded hypodermic needle while he was engaged in cleaning a park adjacent to the shoreline of the Throgs Neck Bridge in Queens County on May 5, 2001 as part of the 109th Police Precinct's Explorers program, a youth activity and career education program.
GNC has established a prima facie entitlement to summary judgment by proffering evidence, in admissible form, that it had no supervision or control over the clean-up activity that resulted in the subject accident.
The Boy Scouts of America is a congressionally chartered national organization, pursuant to 36 U.S.C. 30901. Robert Hayes, director of the Exploring program of GNC, testified in his deposition that GNC is a local council, or subsidiary, of the Boy Scouts of America and is responsible for Scouting activities in the City of New York. The Exploring program, more fully known as the Learning for Life Exploring program, is, according to Hayes, a career education program which introduces students to various career opportunities. Hayes also explained that the 109th Police Precinct is a charter partner participating in running an Explorer program.
Officer Conelli, assigned as youth officer to the 109th Precinct, testified in his deposition that the youths who enroll in the 109th Precinct Explorers are interested in a career in law enforcement and work one-on-one with a police officer. They do community service and engage in recreational activities. Officer Conelli testified that he supervised the 109th Precinct Explorers. He stated that he was the Explorer advisor who was in charge of and headed the group.
His deposition testimony established that he was contacted by a local civic organization asking whether the 109th Explorers could participate in a shoreline clean-up at a local park and that after checking to see if his Explorers were available for that particular day, he arranged for the Explorers to participate in the clean-up. The 109th Explorers were under his constant observation during the cleanup and he also participated in the clean-up himself. The civic organization that sponsored the clean-up provided the group with materials for the work, such as rakes, shovels and gloves.
Although when asked who was "the supervisor of the Explorers unit" he identified the Boy Scouts, Learning for Life (i.e., GNC), it is clear from his testimony that he was not stating that GNC had any actual supervisory control over the activities of the 109th Explorers, but rather that he understood the question as asking whether the "Explorers unit", i.e. the Explorers program itself, as opposed to "your [Conelli's] Explorers group", was "run by the Boy Scouts of America, Learning for Life." He said that "they're the people that run the Explorers" (deposition transcript p. 46). When asked, "your group is run by them; is that correct?" he answered, "Excuse me, I mean they — I don't report to them, but they take the enrollments. A chapter, maybe, if you want to call it" (transcript p. 47). When asked, "What supervisory activity is engaged in by this parent organization, for lack of a better word, over your particular group?" and, after he did not understand the question and was then asked, "Do you get instructions from this group, Learning for Life, on a regular basis?" (p. 48), Officer Conelli responded, "We have monthly meetings, but that's a general meeting, what's going on, enrollments, activities coming up, if you want to participate in them" (p. 48). He also testified that he submits monthly reports of the number of enrollments he had and if he did any activities in the prior month.
Therefore, Officer Conelli's testimony was that he supervised the 109th Explorers, that their participation in the clean-up was his decision and that he does not answer to GNC other than to file periodic reports apprising it as to enrollments in his group and whether his group conducted any activities.
Hayes testified concerning charter partners like the 109th Explorers that they do not have to get approval for any activities and that it is up to them whether they want to notify GNC of the activities they are going to conduct — some do, some do not. When asked, "Do you or anyone in your organization at any time supervise any of the activities by the charter partners?" Hayes responded, "No" (transcript p. 12). Although he did not know whether GNC had advance knowledge of the clean-up activity in which the 109th Explorers participated, when asked, "Would it have been the natural course of business for the 109th Explorer to have notified your office of that particular event?" Hayes responded, "No" (p 13).
Hayes also testified that GNC provides the charter partners with training once or twice a year, depending on the number of new advisors, program materials, support and general liability insurance coverage. However, it is clear from Hayes testimony that this training which GNC provides is merely a general orientation and does not consist of providing specific instruction in how the advisors are to take care of the Explorer members.
When asked what the training consists of, he replied, "In the law enforcement we run new advisor training, where they'll come for two days and go over structure of agreement of council, structure of learning and providing, paperwork, how you fill out paperwork things. Just general program information related to the law enforcement program" (p. 10). They also have monthly meetings consisting of providing program opportunities, events that are going on and issues related to NYPD procedures.
In opposition, plaintiff fails to proffer any evidence rebutting the testimony of Officer Conelli and Hayes that establishes that GNC did not have supervision and control over the day to day activities of the 109th Explorers, that they did not instruct Conelli in how to take care of his charges and that GNC did not conduct, sponsor or participate in the clean-up activity during which infant plaintiff sustained injury. Accordingly, no liability may attach to GNC for any alleged negligent acts of Officer Conelli or the 109th Explorers, as a matter of law ( see O'Lear v. Boy Scouts of America , 33 AD3d 685 [2nd Dept 2006]; Pitkewicz v. Boy Scouts of America, 261 AD2d 462 [2nd Dept 1999]; Alessi v. Boy Scouts of America Greater Niagra Frontier Council, Inc., 247 AD2d 824 [4th Dept 1998]).
Accordingly, GNC's cross-motion is granted and the complaint and all cross-claims against it are dismissed.
Cross-motion by the City for summary judgment dismissing the complaint and any cross-claims against it and Officer Conelli is granted solely to the extent that plaintiff's second cause of action alleging negligent infliction of emotional distress and so much of their first and third causes of action as may be premised upon emotional or psychological injuries or their sequelae are dismissed.
The City contends that it is entitled to summary judgment upon the ground that plaintiffs cannot prove that infant plaintiff was actually exposed to the AIDS virus when he was stuck by the needle and, therefore, cannot maintain a cause of action for AIDS phobia. In the alternative, the City contends that any damages awarded to plaintiff must be limited to six months. The City also contends that it is entitled to summary judgment upon the grounds that there was no negligent supervision of infant plaintiff, that the City did not have actual or constructive notice that the area where the accident occurred was unsafe, and because infant plaintiff assumed the risk of coming into contact with sharp objects on the shoreline.
The City's first ground for summary judgment — AIDS phobia — necessarily relates to plaintiffs' second cause of action in their complaint alleging negligent infliction of emotional distress.
It is the consistent holding of the courts of this State that a cause of action for negligent infliction of emotional distress arising from a fear of contracting AIDS may not be maintained by a plaintiff who has not tested positive for HIV without proof of actual exposure to the HIV virus ( see Brown v. New York City Health Hosps. Corp., 225 AD2d 36 [2nd Dept 1996]). "Actual exposure" requires proof both that the means of transmission of the feared virus was a scientifically accepted method of transmission and that the blood or fluid that may have been introduced into plaintiff's blood stream, or the source thereof, was, in fact, infected with the HIV virus ( see Ornstein v. New York City Health Hosps. Corp. , 10 NY3d 1 ).
There is no dispute that a hypodermic needle is a recognized method of transmission of the HIV virus. However, plaintiffs have failed to demonstrate that the syringe at issue contained blood or any other fluids infected with the HIV pathogen. Indeed, infant plaintiff testified that he did not know whether there were any liquids inside the syringe at all.
Infant plaintiff testified in his deposition that while he was engaged in the clean-up of the shoreline, his foot became caught in a vine, causing him to fall, and that as he fell his calf was pierced by a hypodermic syringe. He was frightened about the possibility of contracting an illness, HIV or Hepatitis C, since his father had died of AIDS. He did not inform anyone there of the accident but told his mother the next day. He did not retrieve the syringe. He stated that he went back to the area with his mother the next day and saw a few syringes scattered around but not in the same area as his fall.
This Court recognizes that tainted hypodermic needles can be, and in fact often have been, the source of HIV infection. It was, therefore, quite reasonable for infant plaintiff to have feared that he might contract the disease. Indeed, his very physicians must have borne the same concern, since they administered to him a regimen of anti-HIV medications as a prophylactic measure.
Nevertheless, this Court is bound by the established rule in New York that a claim for negligent infliction of emotional distress based upon a fear of contracting AIDS is not governed by a subjective reasonableness standard where a plaintiff need only establish that an incident of potential exposure was sufficient to raise a reasonable fear of having contracted HIV, but rather an objective standard under which a claim is only viable where there is proof of actual exposure to the HIV virus ( see Fosby v. Albany Memorial Hosp., 252 AD2d 606 [3rd Dept 1998]; Siegrist v. State of New York, 2007 NY Slip Op 50909 [U] [Ct of Claims 2007]).
Counsel for plaintiffs acknowledges that there is no proof that the syringe was HIV-infected, since it was not recovered. However, he argues that there are special circumstances in this case that should excuse plaintiffs from showing proof that the syringe contained HIV-infected fluid. In this regard, a "special circumstance" exception to the general rule has been carved out of the general rule requiring proof that the fluid that was purportedly transmitted was HIV positive( see Fosby v. Albany Memorial Hosp., 252 AD2d 606, supra; Schulman v. Prudential Ins. Co. Of America, 226 AD2d 164 [1st Dept 1996]). For the reasons stated below, this Court does not find that plaintiffs have presented any special circumstances that would obviate their need to establish actual exposure to the HIV virus.
In Fosby, plaintiff, while at the hospital emergency room, was stuck by a needle hidden in a blanket. She gave the needle to a nurse. The hospital refused to test the needle for 18 months and told plaintiff that she should consider the needle infectious and be tested for HIV on a regular basis. The court found that plaintiff could maintain a claim for AIDS phobia notwithstanding the absence of any proof of actual exposure, since it was the hospital's unexplained refusal to test the needle that prevented plaintiff, through no fault of her own, from demonstrating actual exposure. The refusal of the hospital to allow plaintiff to ascertain whether there was actual exposure, coupled with its representation to plaintiff that she should consider herself to have been actually exposed to HIV, provided a guarantee of genuineness of plaintiff's claim which served as a special circumstance that excused her from having to meet the actual exposure requirement.
In Schulman, the erroneous report of a blood testing lab that plaintiff was HIV positive was deemed a special circumstance that provided a guarantee of genuineness allowing plaintiff to maintain a claim for AIDS phobia.
Both of these case cite Johnson v. State of New York ( 37 NY2d 378) as their authority to justify carving out such a "special circumstances" exception to the actual exposure requirement in AIDS phobia claims. In Johnson, defendant hospital sent a telegram erroneously reporting that plaintiff's mother had died and advising next of kin to make arrangements with an undertaker to retrieve the body for burial. At the wake, plaintiff realized that the corpse was not that of her mother, called the hospital and was informed that a mistake had been made and that her mother was alive in a different wing of the hospital. The Court of Appeals held that the facts of that case constitute a special circumstance that served as a guarantee of the genuineness of the claim notwithstanding the lack of physical injury.
The Court of Appeals recounted the general rule that but for two exceptions, a claim for negligent infliction of emotional distress was only permitted where the emotional trauma was coupled with contemporaneous physical injury or where the emotional distress had consequential physical manifestations. The rationale for this requirement was that contemporaneous or consequential physical harm provided an "index of reliability" otherwise absent in a claim where the claimed injury and its consequences are purely psychological.
The two exceptions noted by the Court of Appeals that had developed permitted recovery for purely psychological distress with no physical injury or manifestations in the situations where the emotional harm resulted from the negligent transmission by a telegraph company of a message erroneously announcing death and where emotional harm was suffered by a close relative from the negligent mishandling of a corpse. The Court of Appeals, in Johnson, rationalized these two exceptions, stating, "In both the telegraph cases and the corpse mishandling cases, there exists an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious'" ( 37 NY2d at 382, quoting Prosser and Keeton, Torts § 54, at 330 [4th ed]). The Court then found the fact pattern before it, which was essentially the same as the telegraph cases erroneously announcing death, as providing a similar guarantee of genuineness.
The Johnson court implicitly relied upon its rationale expressed in Ferrara v. Galluchio ( 5 NY2d 16), which was the first decision in which a negligent infliction of emotional distress claim was allowed to proceed that would otherwise have been precluded by the general rule upon the ground that the circumstances of the case imparted a guarantee of genuineness.
In Ferrara, the Court of Appeals allowed recovery against a negligent physician for mental suffering arising from news given to plaintiff by a subsequent doctor to whom she went for treatment of the original injury caused by the first doctor. In that case, plaintiff was negligently administered excessive X-ray treatments to her shoulder, which resulted in burns. Two years later, she was referred by her attorney to a dermatologist, who advised her that she should have her shoulder examined every six months because the area of the burn might become cancerous. Plaintiff claimed that she developed cancerophobia as a result of the information given her by the dermatologist and the jury awarded her damages for said mental distress against the original doctor.
The Court of Appeals affirmed the award, even though plaintiff did not in fact develop cancer. Finding its inspiration in Prosser, the Court of Appeals stated, "Freedom from mental distress is now a protected interest in this State. [T]he only valid objection against recovery from mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle. The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field. But the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of adequate proof, and it is not necessary to deny a remedy in all cases because some claims may be false. The very clear tendency of the recent cases is to refuse to admit incompetence to deal with such a problem, and to find some basis for redress in a proper case.'" (Prosser on Torts, § 34, pp. 212-213.)" ( 5 NY2d, at 21) (emphasis added).
The circumstances of that case that imparted a guarantee of genuineness was the radiation burn that plaintiff suffered.
What may be gleaned from Johnson and Ferrara is that New York will not allow a claim for negligent infliction of emotional distress absent some objective basis to serve as a reasonable guarantee of the genuineness of the claim. In Ferrara, the guarantee of genuineness of plaintiff's cancerophobia neurosis was her physical injury — the radiation burn. In Johnson, it was the telegram from the hospital announcing (erroneously) as fact that plaintiff's mother had died.
It is against this backdrop that the courts of this State have made it the requirement in AIDS phobia cases, where plaintiff has not tested positive for HIV but nevertheless claims to have suffered mental distress from fear of contracting HIV and AIDS, that plaintiff at least demonstrate that he or she was exposed to HIV. Just as in Ferrara, where plaintiff, who claimed cancerophobia, was actually exposed to a massive dose of cancer-causing radiation, in Ornstein ( 10 NY3d 1, supra), plaintiff, a nurse, who claimed AIDS phobia, was actually exposed to the HIV virus when she was stuck with a blood-filled hypodermic needle on the bed of an AIDS patient. The Court of Appeals observed, "There is no question in this case that defendants owed plaintiff a duty of care and that she came forward with proof that fulfilled the actual exposure' requirement, thereby satisfying the indicia of genuineness requirement" ( 10 NY3d, at 4).
In other words, "actual exposure" to HIV is itself the "special circumstance" that is the guarantee of genuineness in AIDS phobia cases where plaintiff has not tested positive for HIV ( see generally Brown v. New York City Health Hosps. Corp., 225 AD2d 36, supra). To the extent that the Third Department in Fosby carved out what was, in essence, a special circumstances exception to the special circumstances exception, such was limited to the situation where the defendant actually prevented plaintiff from proving the actual presence of HIV.
Moreover, even though the First Department in Schulman found a special circumstances exception where a blood report mistakenly found that plaintiff was HIV positive, actually, such was not an exception to the actual exposure requirement but an example of it. Since AIDS phobia, like any other mental distress, depends upon the state of mind of the plaintiff, the second prong of the actual exposure requirement was fulfilled when it was shown that plaintiff's claimed mental distress resulted from an objective medical report stating that plaintiff was in fact HIV positive. Whether or not the report turned out to be erroneous and whether or not plaintiff was, in actuality, HIV positive, was irrelevant in assessing plaintiff's state of mind and determining that his claimed AIDS phobia was genuine based upon his reliance upon the objective blood test results.
In the instant matter, counsel for plaintiff contends that the death of infant plaintiff's father from AIDS only four months prior to the accident guarantees that infant plaintiff's fear of having contracted that same disease was genuine and, therefore, submits that such fact constitutes a special circumstance that should excuse infant plaintiff from being required to demonstrate that he was actually exposed to HIV.
Based upon the history of emotional distress causes of action and the strict limitations imposed upon AIDS phobia claims, this Court does not find that an expansion of the special circumstances exception to include such anecdotal fact, wholly extrinsic to the instant matter, would be justifiable or supportable under the present state of the law. Although this Court is not unsympathetic with infant plaintiff who lost his father to AIDS, and although such tragedy certainly makes it more reasonable that infant plaintiff would suffer fear of contracting the disease, as stated heretofore, an AIDS phobia case is not governed by a subjective reasonableness standard, but an objective standard.
Where plaintiff has not tested HIV positive, then his claim of AIDS phobia cannot be maintained, as a matter of law, unless he demonstrates actual exposure to HIV by meeting the two-pronged test of 1) showing a recognized channel of transmission and 2) that the source of the transmission was HIV positive, or unless he demonstrates the first prong thereof — a scientifically recognized method of transmission — but shows that defendant actually prevented him from determining whether the source of the transmission was HIV positive. Since plaintiffs have failed to show proof of actual exposure, and since there is no issue of the City or Officer Conelli preventing plaintiffs from determining whether the syringe contained HIV-infected fluid, their cause of action for negligent infliction of emotional distress must fail, as a matter of law.
Accordingly, the City's cross-motion is granted to the extent that plaintiffs' second cause of action, and so much of their first and third causes of action as may be premised upon emotional or psychological injuries or their sequelae are dismissed.
Since the City and Officer Conelli are entitled to summary judgment dismissing plaintiffs' emotional distress claim, this Court does not reach the issue of whether plaintiffs' AIDS phobia claim should be limited to six months.
However, even though infant plaintiff may not maintain his AIDS phobia cause of action, the City has failed to demonstrate that plaintiffs are not entitled to maintain so much of their first and third causes of action alleging physical injuries and derivative losses resulting from the needle stick itself and treatments administered to infant plaintiff, including the ingestion of medication as a prophylactic measure and their physical effects ( see McLarney v. Community Health Plan, 250 AD2d 310 [3rd Dept 1998]).
The record on this cross-motion raises issues of fact as to whether there was negligent supervision of infant plaintiff and whether the City or Officer Conelli had actual or constructive notice of a hazardous condition of the clean-up area by virtue of the presence of hypodermic needles and failed to take reasonable steps to assure the safety of the children participating in the clean-up.
The City's argument that infant plaintiff assumed the risk of his injury by voluntarily participating in the clean-up is without merit.
The doctrine of primary assumption of risk applies in cases where there is an elevated risk of danger and the risk is obvious, fully comprehended and plaintiff consented to being exposed to such risk by voluntarily participating in the risky activity ( see Cohgen v. Heritage Motor Tours, 205 AD2d 105 [2nd Dept 1994]). A participant "consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the [activity] generally and which flow from such participation"( Gamble v. Town of Hempstead, 281 AD2d 391, 391 [2nd Dept 2001]). Although knowledge is a factor, the sine qua non of assumption of risk is that the risk must be inherent in the activity ( see Morgan v. Beck, 90 NY2d 471). The City has failed to demonstrate that the risk of being stuck by a hypodermic needle is inherent in the activity of cleaning a beach.
Moreover, even though Officer Conelli testified that he was apprised by another adult that a hypodermic needle was found on the beach and that he informed the Explorers of this fact, including infant plaintiff, telling them to be careful where they stepped, such fact, if true, would not establish as a matter of law that infant plaintiff assumed the risk of getting stuck by a hypodermic needle. "Application of the doctrine of assumption of the risk requires not only knowledge of the injury-causing defect, but also, appreciation of the resultant risk. Awareness of risk, however, is not to be determined in a vacuum . . . Rather it is to be assessed against the background of the skill and experience of the particular plaintiff" ( see Gamble v. Town of Hempstead, 281 AD2d 391 [2nd Dept 2001]). The City has failed to demonstrate on this record that infant plaintiff, who was 12 years of age on the date of the accident, had the necessary judgment, maturity and experience to appreciate the potential risk presented after being told that a needle had been found on the beach.
Accordingly, GNC's cross-motion is granted, the action and all cross-claims are dismissed in their entirety as against GNC and the City's and Conelli's cross-motion is granted solely to the extent that plaintiffs' second cause of action alleging negligent infliction of emotional distress, and so much of their first and third causes of action as may be premised upon emotional or psychological injuries or their sequelae are dismissed. In all other respects, the City's and Conelli's cross-motion is denied.