Endres v. Endres

Endres v. Endres (2004-281); 180 Vt. 640; 912 A.2d 975

2006 VT 108

[Filed 25-Oct-2006]


                                 ENTRY ORDER

                                 2006 VT 108

                      SUPREME COURT DOCKET NO. 2004-281

                             DECEMBER TERM, 2004


  Joan Endres                        }  APPEALED FROM:
                                     }
      v.                             }
                                     }  Chittenden Superior Court
                                     }
  Kevin Endres                       }
                                     }  DOCKET NO. S1584-03 CnC

  Trial Judge: Matthew I. Katz

       In the above-entitled cause, the Clerk will enter:

       ¶ 1.  Plaintiff Joan Endres appeals the superior court's dismissal of
  her complaint for negligence, battery, and intentional infliction of
  emotional distress against her former husband, Kevin Endres.  Wife's
  complaint alleges that, unbeknownst to her, husband had a sexual affair,
  contracted Human Papillomavirus (HPV), and then infected wife with the
  virus.  We reverse the trial court's dismissal of wife's claim for
  negligence.  We affirm dismissal of wife's claims for battery and
  intentional infliction of emotional distress.

       ¶ 2.  We take as true the following facts alleged in wife's complaint.  
  Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997).  Husband and
  wife were married in 1972.  At some point during their marriage, husband
  had an affair.  He contracted HPV, as did wife.  Wife never had a sexual
  partner other than husband, and the only established mechanism for cervical
  HPV infection is through vaginal penetration.  Wife suffered injuries as a
  result of the HPV infection.

       ¶ 3.  Husband filed a motion to dismiss for failure to state a claim,
  arguing that: (1) wife's claim of negligence failed because she did not
  allege that husband actually knew he was infected with HPV, which was
  required to establish that husband owed a duty to wife; (2) wife's claim of
  battery failed because, without actual knowledge of his infection, husband
  lacked the requisite intent; and (3) wife's claim for intentional
  infliction of emotional distress also failed for lack of intent.  In
  addition, husband argued that the doctrine of interspousal immunity
  prevented wife from asserting any claims against husband.  The superior
  court dismissed the complaint for failure to state a claim, concluding that
  all of wife's claims required an allegation that husband knew or should
  have known that he was infected with HPV, and wife had failed to allege
  such knowledge.  Wife filed this appeal.
        
       ¶ 4.  We first address wife's negligence claim.  The trial court
  dismissed this count for failure to state a claim, concluding that wife was
  required to plead what duty husband owed to her and that she had failed to
  articulate a specific duty.  Rule of Civil Procedure 8(a) explains that the
  pleading should set forth "a short and plain statement of the claim showing
  that the pleader is entitled to relief." V.R.C.P. 8(a).  Our procedural
  rules do "not require a specific and detailed statement of facts
  constituting the cause of action."   Levinsky v. Diamond, 140 Vt. 595, 600,
  442 A.2d 1277, 1280 (1982), overruled on other grounds by Muzzy v. State,
  155 Vt. 279, 279 n.*, 583 A.2d 82, 83 n.* (1990). The complaint need only
  give the defendant fair notice of the plaintiff's claim and the grounds
  upon which it rests.  Lane v. Town of Grafton, 166 Vt. 148, 152-53, 689 A.2d 455, 457 (1997).  Additionally, motions under Rule 12(b)(6) are not
  favored and rarely granted, especially when the asserted theory of
  liability is novel.  Ass'n of Haystack Prop. Owners  v. Sprague, 145 Vt.
  443, 446-47, 494 A.2d 122, 125 (1985).   

       ¶ 5.  Here, wife alleged that husband acted negligently in
  transmitting an STD to her and that she has suffered injuries as a result
  of this transmission.  Although wife has not specifically enumerated facts
  to demonstrate that husband owed her a legal duty and breached that duty,
  such specificity is not required at the pleading stage.  Under our liberal
  pleading rules, "[i]t is sufficient against a motion to dismiss to allege
  that defendant acted negligently and as a result plaintiff was injured." 
  Augusta Broadcasting Co. v. United States, 170 F.2d 199, 200 (5th Cir.
  1948) (applying analogous federal rule); accord Granger v. Shouse, 10 F.R.D. 439, 440 (W.D. Mo. 1950) (explaining that "a general averment of
  negligence is all that is required").

       ¶ 6.  By contrast, we conclude that wife's claims for battery and
  intentional infliction of emotional distress do require an allegation that
  husband actually knew he was infected with HPV, and we affirm dismissal of
  those claims.  Intent is a required element of battery, Wilson v. Smith,
  144 Vt. 358, 361, 477 A.2d 964, 965 (1984), and intentional infliction of
  emotional distress requires a showing that the defendant "engaged in
  outrageous conduct, done intentionally or with reckless disregard of the
  probability of causing emotional distress, resulting in the suffering of
  extreme emotional distress, actually or proximately caused by the
  outrageous conduct."  Fromson v. State, 2004 VT 29, ¶ 14, 176 Vt. 395, 848 A.2d 344 (citations and quotations omitted).  In the absence of an
  allegation that husband had actual knowledge that he had contracted an STD,
  these claims were properly dismissed.

       Affirmed in part, reversed in part, and remanded for further
  consideration consistent with this order.

       BY THE COURT:


  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice
  
  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Paul L. Reiber, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.), 
  Specially Assigned