remote risk of bleeding no justification for refusal to give pedicure to person with AIDS
How later courts described this case
- remote risk of bleeding no justification for refusal to give pedicure to person with AIDS
Written by the judges who cited it.
The opinion
GOERTZEN, J.
I dissent. Appellant in this matter passed away on May 15, 1989. A motion to dismiss was filed by respondents on May 31, 1989. This motion was opposed by appellant and denied by this court on June 15, 1989, prior to the case being fully briefed. While I initially agreed with my colleagues to deny the motion to dismiss, I now feel that this case should be dismissed as moot.
“It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 [ 244 Cal.Rptr. 581 ]; see also Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 170 [ 167 Cal.Rptr. 735 ].)
Like my colleagues, I am not insensitive to the fact that the “ ‘devastating effects of [AIDS] and widespread lack of knowledge about it have produced deep anxieties, and considerable hysteria, about the disease and those that suffer from it.’ ” (Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [ 261 Cal.Rptr. 197 ].) Most importantly, I recognize that “AIDS is the modern day equivalent of leprosy. AIDS, or a suspicion of AIDS, can lead to discrimination in employment, education, housing and even medical treatment.” (Rasmussen v. South Florida Blood Service (Fla. 1987) 500 So.2d 533, 537 [ 56 A.L.R.4th 739 ], italics added.)
But it must be noted that with respect to this dreaded disease, the hysteria and fear generated by it, and the potential for discrimination against the poor victims of this scourge, the case at bar does not deal with discrimination in employment, education, housing, or medical treatment. This case *1113 deals with the denial of one of the least important personal services in our society—a pedicure.
The factual context of this case does not mandate a decision in face of the death of appellant. The appeal should be dismissed.
With respect to my change of mind occurring since the earlier denial of the dismissal motion, I adopt the cogent concurring opinion of Supreme Court Justice Stanley Mosk in the case of Smith v. Anderson (1967) 67 Cal.2d 635, 645-646 [ 63 Cal.Rptr. 391 , 433 P.2d 183 ].