stating, “whether the complained of negligence is the proximate cause of the plaintiff's injury is dependent upon the harm . . . being the result of both the natural and probable consequences of the primary negligence”
How later courts described this case
- stating, “whether the complained of negligence is the proximate cause of the plaintiff's injury is dependent upon the harm . . . being the result of both the natural and probable consequences of the primary negligence”
- finding a third party could not assert negligence per se based on violation of 63 0.$.1991 § 1-519
- “[T]he three essential elements of a prima facie case of negligence are: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly perform that duty, and (3) the plaintiffs injury being proximately caused by the defendant’s breach.”
- “[W]here the primary act of negligence is not superseded by a second cause – i.e, continues to operate concurrently, so that damage is the result of both causes acting in concert – each act may be regarded as the proximate cause[.]”
Written by the judges who cited it.
The opinion
SUMMERS, Justice,
concurring.
¶ 1 The opinion of the Court states that for Plaintiff to recover Loosen must have known or have had reason to know of her disease when she engaged in sexual relations with Plaintiffs husband. (Emphasis by the Court). This a simple negligence case. Generally, negligence cases usually involve the “knew or should have known” standard, and acts are measured by those of an ordinary and reasonably prudent person. See Ingram v. Wal-Mart Stores, Inc., 1997 OK 11 , 932 P.2d 1128 , (material fact as to whether defendant knew or should have known of a *1086 dangerous condition). See also Prosser & Keeton on the Law of Torts, 182-185 (5th ed. 1984), (where the authors discuss the “knowledge” of a reasonable person): Restatement (Second) of Torts, § 8A, 11, 12 (1977) (work uses such phrases as “intent”, “reasonably believes”, “reason to know”, “should know”, etc.).
¶ 2 Courts presented with a suit for negligent transmission of a sexual disease have used this “knew or should have known” standard. See Tischler v. Dimenna, 160 Misc.2d 525 , 609 N.Y.S.2d 1002, 1004 (1994), (“The duty has been found to exist in the relationship between the parties where the defendant knew or should have known that he had a communicable disease.”); Meany v. Meany, 639 So.2d 229, 235 (La.1994), (“This record contained enough evidence from which a jury could reasonably conclude that Mr. Meany knew, should have known, or should have suspected that he was putting his wife at risk of venereal disease by sexual contact.”); R.W. v. T.F., 528 N.W.2d 869, 873 (Minn.1995), (cause of action exists for the negligent transmission of genital herpes where the jury found that the actor “knew or should have known that he had herpes and that he could transmit the disease through unprotected sexual intercourse,-”).
¶3 It is true that an actual knowledge test may be required in slightly different circumstances. Actual knowledge was used as a standard in cases where a landlord was sued for leasing contaminated premises resulting in- the negligent transmission of smallpox. See Cesar v. Karutz, 60 N.Y. 229 , 19 Am.Rep. 164 (1875); Minor v. Sharon, 112 Mass. 477 , 17 Am.Rep. 122 (1873). The actions were not allowed unless landlord actually knew of the presence of the contagious disease prior to leasing the premises.
¶ 4 More recently in Doe v. Johnson, 817 F.Supp. 1382 (W.D.Mich.1993), that court canvassed the cases and determined that a defendant’s actual knowledge of the disease, or knowledge of symptoms, or knowledge of a prior sexual partner’s disease status, could all be sufficient to give rise to a duty to warn or a negligence action. Id. 817 F.Supp. at 1389-1391 . Further, that court noted that certain commentators had suggested that certain “high risk” behavior patterns or lifestyles dramatically increasing the chance of contracting a contagious disease should also be a factor in determining what the defendant “should know” for the purpose of a negligence action or a duty to warn a plaintiff. Id. 817 F.Supp. at 1389-1391 .
¶ 5 The briefs on appeal are those filed in the trial court. Neither Plaintiff nor Defendant briefed the issue on the level of knowledge the defendant must have to be liable. However, Plaintiffs brief did cite Meany v. Meany, swpra, an opinion using the “knew or should have known” standard. The Court’s opinion lines up with the weight of authority in stating the test. It is correct.
¶ 6 I respectfully disagree with one of the dissents. Actions for criminal conversation, alienation of affections, and seduction have been and remain abolished in Oklahoma. Bladen v. First Presbyterian Church of Sallisaw, 1993 OK 105 , 857 P.2d 789, 796 ; Lynn v. Shaw, 1980 OK 179 , 620 P.2d 899 . These actions are substantially' different than that in the present case. Criminal conversation was an action for tortious injury to marital rights by invasion of the conjugal relationship. Id. 857 P.2d at 796 n. 11. Recovery was granted on the basis of loss of consortium and services, injury to social position, impairment to family honor and mental suffering. Id Criminal conversation was a “[djefilement of the marriage bed, sexual intercourse of an outsider with husband or wife, or a breaking down of the covenant of fidelity”. Blacks Law Dictionary, 448 (4th ed. 1951), citing, Young v. Young, 236 Ala. 627, 184 So. 187,190, 191 (1938).
¶ 7 Alienation of affections is slightly different, and “[t]he gist of the tort is not sexual intimacy but an interference with the marital relation that changes one spouse’s mental attitude toward the other.” Prosser & Kee-ton on the Law of Torts, 918 (5th ed. 1984). Seduction was a tort providing for recovery by parents for a tortfeasor’s sexual intercourse with the child with the resultant loss of services flowing from a pregnancy. “American courts, in general, have said that loss of services is the gist of the action, which must fail without it.” Id. at 926. Courts have subsequently minimized this aspect of *1087 loss of services. Id. at 927. Our Court recognized this, and explained that in an action based upon seduction a pregnancy need not result, since “the gist of the action is the act of intercourse under promise of marriage.” Johnson v. Harris, 187 Okla. 239 , 102 P.2d 940, 943 (1940).
¶8 The action brought today is not for defilement of the marriage bed, alteration of a spouse’s mental attitude, interference with a child’s services, nor for an act of intercourse under promise of marriage. It is brought for the negligent transmission of a disease, and recovery is sought for the resultant illness and damages flowing therefrom. The tort based upon the negligent or wrongful spread of a disease is well established. Some examples are: Gilbert v. Hoffman, 66 Iowa 205 , 23 N.W. 632 (1885), (negligent transmission of smallpox); Hendricks v. Butcher, 144 Mo.App. 671 , 129 S.W. 431 (1910), (same); Smith v. Baker, 20 F. 709 (S.D.N.Y.1884), (whooping cough); Kliegel v. Aitken, 94 Wis. 432 , 69 N.W. 67 (1896), (typhoid fever); Crowell v. Crowell, 180 N.C. 516 , 105 S.E. 206 (1920), (venereal disease); Duke v. Housen, 589 P.2d 334, 340 (Wyo. 1979), (gonorrhea); Earle v. Kuklo, 26 N.J.Super. 471 , 98 A2d 107, 109 (1953), (tuberculosis).
¶ 9 I respectfully submit that today’s opinion in no way resurrects the defunct actions for criminal conversation or seduction.