Lockhart v. Loosen , 943 P.2d 1074 ( 1997 )

LAVENDER, Justice.

¶ 1 Dispositive of Loosen’s appeal is whether there are factual issues which should have been resolved by the trier of fact before it dismissed her claim with prejudice. Application of traditional common-law principles of causation require that Lockhart’s claim be remanded to the district court for further proceedings.

I

FACTS AND PROCEDURAL HISTORY

¶ 2 Lockhart alleges that Loosen — knowing she had genital herpes — engaged in sexual intercourse with David Lockhart [appellant’s husband]. She contends that Loosen not only failed to warn Lockhart’s husband of her contagion but also affirmatively communicated to him that she did not have any sexually transmittable diseases [STD]. Lockhart later contracted herpes simplex virus II from her husband. Appellant alleges that Loosen knew that her sexual liaison with Mr. Lockhart was extramarital and was aware of his wife’s identity.

¶ 3 Seeking redress for the harm related to contracting herpes, Lockhart brought an action against Loosen based upon theories of negligence, fraud, the intentional and negligent infliction of emotional distress and negligence per se. Loosen moved for the suit’s dismissal, urging (1) that David Lockhart’s infidelity was the proximate cause of his wife’s harm and (2) that she owed no duty of care to the wife. The trial court dismissed the case with prejudice and this appeal followed. The Court of Civil Appeals [COCA] affirmed the dismissal below on all theories of liability except negligence. Loosen sought certiorari which we granted.¹

II

THE STANDARD OF REVIEW

¶ 4 A trial court’s dismissal of an action for failure to state a claim upon which relief can be granted is reviewed de novo.² To assay the sufficiency of the plaintiffs petition to state a legally cognizable claim we must determine whether relief is possible under any set of facts that could be proved consistent with the pleadings’ allegations.³ All inferences and conclusions which can be deduced from the evidentiary materials must be drawn in the light most favorable to the non-moving party.⁴ Further, to resist a motion to dismiss it is not necessary for a plaintiff to either identify a specific theory of recovery or to identify the correct remedy or relief to which he/she may be entitled.⁵

¶ 5 Generally motions to dismiss are viewed with disfavor. Under most circumstances a plaintiff’s petition is only dismissible (1) for want of a cognizable legal theory of liability or (2) for insufficient facts under the advanced theory.⁶

Ill

A THIRD PARTY MAY NOT PREDICATE A NEGLIGENGE-PER-SE THEORY OF LIABILITY ON A VIOLATION OF 63 O.S.1991 § 1-519’s PROVISIONS

¶ 6 Plaintiff’s claim rests in part upon Loosen’s alleged violation of a statutory duty⁷ which, Lockhart asserts, constitutes negligence per se. A statute’s violation is deemed negligence per se if the claimed injury (a) was caused by the law’s violation, (b) was of the type intended to be prevented by the statute, and (c) the injured party was a member of the class meant to be protected by the statute.⁸

¶ 7 Discernment of legislative intent is required to place the plaintiff within the class of persons meant to be protected by the ambit of 63 O.S.1991 § 1-519.⁹ It is the ascertainment of this intent which is the cardinal rule of statutory construction.¹⁰ A statute’s language, when given its plain and ordinary meaning, is the yardstick for divining the drafters’ objective.¹¹ Here legislative intent becomes clear when the language of the entire, key § 1-519 phrase — “to expose any other person by the act of copulation or sexual intercourse” [Emphasis added] — is considered. The legislative enactment proscribes persons with active, transmittable venereal diseases from engaging in sexual intercourse with other persons. The parties whom the act intends to protect are those with whom an infected person would copulate. The statute does not impose upon the infected person a duty to communicate the fact of their contagion to their partners or to third persons. It requires them not to engage in sexual intercourse while their condition is infectious.

¶ 8 Lockhart — a third party under this statute’s aegis — may not assert a negligence-per-se theory of liability against Loosen based upon a violation of § 1-519’s terms. Loosen did not engage in sexual intercourse with her and had no affirmative statutory duty to inform Lockhart of her contagion, if any. If the onus of § 1-519’s language rests upon anyone, it rests upon the plaintiff’s husband. When the straightforward language of the act is considered, it is obvious (1) that the plaintiff is not a member of the class meant to be protected by the statute’s language and (2) the act’s language does not create a duty of care which is owed to someone other than a sexual partner.

IV

THE NEGLIGENCE-RELATED CLAIM

A

¶ 9 Under Oklahoma’s extant jurisprudence the 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.¹² Actionable negligence requires that the act complained of be the direct cause of the harm for which liability is sought to be imposed.¹³ Further, whether the complained of negligence is the proximate cause¹⁴ of the plaintiffs injury is dependent upon the harm (for which compensation is sought) being the result of both the natural and probable consequences of the primary negligence.¹⁵ This latter determination is critical to assaying the foreseeability of the injury as a result of the initial negligence and hence to establishment of a prima facie case.¹⁶

¶ 10 For an intervenor’s act to become a “supervening cause” and cut off possible liability for the original negligence, it must (1) be independent of the primary negligence, (2) be adequate of itself to bring about the injury complained of and (3) not be a reasonably foreseeable event.¹⁷ When such an act qualifies as a supervening cause, the original negligence mutates into a mere condition and as a matter of law is no longer actionable.¹⁸ When, however, the intervening act is a reasonably foreseeable consequence of the primary negligence, the original wrongdoer will not be relieved of liability.¹⁹ Also, where 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 and the wrongdoers will be jointly and severally liable for the plaintiffs compensable harm.²⁰

¶ 11 Traditionally, causation in a negligence action lies within the realm of fact, not law.²¹ Whether a negligent event’s injurious consequences could have been reasonably foreseen presents a jury question.²² Whether an intervening act is foreseeable also calls for an evaluative determination by the trier of fact.²³ It is only “where the evidence together with all inferences which may be properly deduced therefrom is insufficient to show a causal connection between the alleged wrong and the injury” that the issue of proximate cause becomes a question of law.²⁴

B

¶ 12 The common-law principles of causation, applicable here, were succinctly summarized in Graham v. Keuchel, 847 P.2d 342 (Okla.1993), where the Court — in assessing liability between an original wrongdoer and an intervenor [referred to in its opinion as “third party”] — held:

A person is not generally deemed liable at common law for a third party’s deliberate act. A third person’s intentional tort is a supervening cause of the harm that results — even if the actor’s negligent conduct created a situation that presented the opportunity for the tort to be committed— unless the actor realizes or should realize the likelihood that the third person might commit the tortious act. A negligent actor is not bound to anticipate another’s wrongful act after the latter has discovered the danger that arises from the former’s negligence. Lapse of time or other reason— such as, e.g., the third person’s discovery of the original actor’s negligence or the former’s deliberate assumption of control of the situation — may cause the duty to prevent harm to another, threatened by the original actor’s negligent conduct, to shift from that actor to the third person. When this happens the third person’s failure to prevent the threatened harm may be a supervening cause. [Citations omitted.] Id. at 350-51.

It is through the lens of these principles and examination of the facts as disclosed by the record and the logical inferences that can be drawn from them that the propriety of the trial court’s dismissal of Lockhart’s negligence claim is determined. There is a paucity of facts in the record. Loosen stipulated that she has herpes only for purposes of the motion to dismiss. She did not stipulate that she had not told Mr. Lockhart of this fact. The record does not evidence whether Mr. Lockhart had developed symptoms of, or knew that he had, herpes before he engaged in sex with the plaintiff.

¶ 13 An essential element of Lockhart’s proof is that a duty of care is owed to her by Loosen. Actionable negligence requires that Loosen’s purported failure to inform Mr: Lockhart of her contagion be the direct cause of the plaintiff’s injury— i.e., the contraction of herpes. While normally Loosen would owe no duty of care to the wife, a third party, every person is under a duty to exercise due care in using that which he/she controls so as not to injure another.²⁵ If Loosen knew or should reasonably have known that she had herpes²⁶ and copulated with Mr. Lockhart during a period when she was infectious, under common-law principles she had a duty to warn him of her contagion. Further, if Loosen knew that Mr. Lockhart was copulating with another person and could identify that person [whether that person was married to Lockhart or not], it would be reasonably foreseeable to Loosen that silence about her infectious state — i.e., a breach of the duty of care owed to her sexual partner — could result in the transmittal of herpes to that third person. Under this hypothetical factual scenario, the trial court could determine that it was reasonably foreseeable to Loosen that a natural and probable consequence of her silence would be the transmittal of this highly contagious disease²⁷ to this plaintiff.

¶ 14 If Loosen did not know or have reason to know of her contagion, her silence would not rise to the level of actionable negligence as a matter of law. If (1) Loosen told Mr. Lockhart of her disease before he engaged in sex with his wife, or (2) Mr. Lockhart knew that he had contracted a venereal disease before he engaged in sex with his wife, Loosen’s silence — which potentially could have been the proximate cause of the wife’s injury — would evolve into a mere condition.²⁸ This is so because upon either of the suggested facts occurring, Mr. Lock-hart’s act would be adequate of itself to cause the plaintiffs injury. Also, if Mr. Lockhart were armed with knowledge of his potential infection, it would not be reasonably foreseeable that he would engage in sexual relations with the plaintiff and his copulation with his wife would become a supervening cause.²⁹ If either of these factual scenarios are established or Loosen is shown to have no knowledge of her contagion when she had sex with Mr. Lockhart, proximate cause would no longer be a jury question and Looseris liability could properly be reached by the court as a question of law.

¶ 15 The dearth of facts in this case renders the trial court’s dismissal of Lockhart’s claim premature. Upon the record before us the court cannot say that relief to Lockhart is impossible under the disclosed facts and the inferences which can be deduced from them. Her case must be remanded to the district court for additional findings of facts which greater define the knowledge of and relationship between these parties. The further development of facts is a required predicate to application of the common-law principles of causation delineated above. It is only then that the trial court can properly decided whether Lockhart has asserted a cognizable claim for negligence.

C

¶ 16 Lockhart asserts that the Court of Civil Appeal’s decision allows her to proceed against Loosen on a negligent-infliction-of-emotional-distress theory of liability as a separate theory of liability from negligence. This is not so. Under Oklahoma’s jurisprudence the negligent causing of emotional distress³⁰ is not an independent tort, but is in effect the tort of negligence.³¹

V

CONCLUSION

¶ 17 Unquestionably there is a legislative intent to control and prevent the spread of venereal diseases. To accomplish this purpose the Legislature has prohibited infected persons from copulating. If there is to be found a duty of care in § 1-519’s proscription, it is owed to the person with whom the diseased person would engage in sexual intercourse and not to that person’s succeeding sexual partners — whether these people be wife/husband, significant other and/or other sexual paramour.

¶ 18 Today’s pronouncement is not an extension of tort liability for an indeterminate time to an indeterminate class of third parties. Loosen’s liability to Lockhart must be predicated, if at all, on traditional common-law principles of proximate cause. If Loosen knew the plaintiffs identity and recognized her as someone with whom her sexual partner would later copulate and she did not tell him she had herpes before he engaged in sex with this third person, it can be found that a natural and probable consequence of her silence is that Lockhart would communicate this highly contagious disease to the third person. Loosen’s non-disclosure of the critical fact of her infection could be deemed a breach of the ordinary care owed under the circumstances and a direct cause of Lock-hart’s infection. The plaintiff could then be said to have asserted a legally cognizable claim.

¶ 19 Under the criteria established by Oklahoma’s extant jurisprudence and in light of the inferences which can be drawn from the record facts, the trial court’s dismissal of Lockhart’s claim cannot be sustained. It cannot be said that relief was not available to Lockhart under any set of facts that could be proved consistent with the pleadings’ allegations or the inferences which could be drawn from them.

¶ 20 Upon certiorari previously granted,

THE COURT OF CIVIL APPEALS’ OPINION IS VACATED IN PART AND THE DISTRICT COURT’S DECISION IS REVERSED IN PART AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY’S PRONOUNCEMENT.

¶ 21 KAUGER, C.J., SUMMERS, V.C.J., and HODGES, HARGRAVE and WATT, JJ., concur. ¶ 22 ALMA WILSON, J., concurs in part; dissents in part. ¶ 23 SIMMS and OPALA, JJ., dissent.

1 . In her answer to the petition for certiorari Lockhart did not contest the COCA’s holding which sustained the correctness of the trial court’s dismissal of her claim on fraud and intentional-infliction-of-emotional-distress theories. The settled-law-of-the-case doctrine bars from re-litigation issues (a) finally settled in the review process or (b) those that the aggrieved party has failed to timely raise in the course of the appellate contest. Hence, these theories of liability are now beyond the scope of our reviewing cognizance. Nichols v. Mid-Continent Pipe Line Co., 933 P.2d 272, 281 (Okla.1996); Jackson v. Jones, 907 P.2d 1067, 1074 n. 37 (Okla.1995); Morrow Dev. v. American Bank and Trust, 875 P.2d 411, 413 (Okla.1994); Hough v. Leonard, 867 P.2d 438 (Okla.1993).

2 . Hayes v. Eateries, Inc., 905 P.2d 778, 780 (Okla.1995); Indiana Nat. Bank v. D.H.S., 880 P.2d 371, 375 (Okla.1994); Gay v. Akin, 766 P.2d 985, 989 n. 13 (Okla.1988).

3 . Delbrel v. Doenges Bros. Ford, 913 P.2d 1318, 1319 (Okla.1996); Ind. Nat'l. Bank, supra note 2 at 376; Niemeyer v. U.S. Fidelity and Guar. Co., 789 P.2d 1318, 1321 (Okla.1990).

4 . Hoyt v. Paul R. Miller, M.D., Inc., 921 P.2d 350, 353 (Okla.1996); Frazier v. Bryan Memorial Hosp. Auth., 775 P.2d 281, 287 (Okla.1989)

5 . Ind. Nat'l. Bank, supra note 2 at 375; Great Plains Federal S & L v. Dabney, 846 P.2d 1088, 1096 (Okla.1993) (Opala, J., concurring).

6 . Ind. Nat’l. Bank, supra note 2 at 375.

7 . The statutory duty asserted to have been violated arises under the terms of 63 O.S.1991 § 1-519 which provide in pertinent part:

"Diseased persons — Marriage or sexual intercourse

It shall be unlawful and a felony for any person, after becoming an infected person and before being discharged and pronounced cured by a physician in writing, to marry any other person, or to expose any other person by the act of copulation or sexual intercourse to such venereal disease or to liability to contract the same.” [Emphasis added.]

8 . Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla.1980); Elam v. Loyd, 201 Okl. 222, 204 P.2d 280, 282 (Okla.1949). See also Earl W. Baker & Co. v. Lagaly, 144 F.2d 344, 346 (10th Cir.1944).

9 . For the pertinent terms of 63 O.S.1991 § 1-519, see supra note 7.

10 . Riffe Petroleum Co. v. Great Nat. Corp., Inc., 614 P.2d 576, 579 (Okla.1980); Stemmons, Inc. v. Universal C.I.T. Credit Corp., 301 P.2d 212, 216 (Okla.1956).

11 . Tinker Inv. & Mortg. v. Midwest City, 873 P.2d 1029, 1038 (Okla.1994); City of Bethany v. Hill, 509 P.2d.1364, 1365 (Okla.1973); Applications of Oklahoma Turnpike Authority, 277 P.2d 176, 182 (Okla.1954).

12 . Lay v. Dworman, 732 P.2d 455, 456 (Okla.1987); Thompson v. Presbyterian Hosp., Inc., 652 P.2d 260, 263 (Okla.1982); Sloan v. Owen, 579 P.2d 812 (Okla.1977); Nicholson v. Tacker, 512 P.2d 156, 158 (Okla.1973).

13 . Graham v. Keuchel, 847 P.2d 342, 348 (Okla.1993); Thompson, supra note 12 at 263.

14 . An event’s proximate cause is that "which in a natural and continuous sequence, unbroken by an independent cause, produces the event and without which the event would not have occurred.” Johnson v. Mid-South Sports, Inc., 806 P.2d 1107, 1109 (Okla.1991) [quoting Gaines v. Providence Apartments, 750 P.2d 125, 126-27 (Okla.1988)].

15 . Norman v. Scrivner-Stevens Co., 201 Okl. 218, 204 P.2d 277, 279 (Okla.1949). "It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence.” Id. 204 P.2d at 279.

16 . Atherton v. Devine, 602 P.2d 634, 636 (Okla.1979).

17 . Minor v. Zidell Trust, 618 P.2d 392, 394 (Okla.1980).

18 . Thompson, supra note 12 at 264; Zidell Trust, supra note 17 at 395.

19 . Turner v. Gallagher, 371 P.2d 733, 733-34 Syl. 1 (Okla.1962).

20 . Gallagher, supra note 19 at 736; City of Altus v. Wise, 193 Okl. 288, 143 P.2d 128, 131 (Okla.1943). See also Oklahoma Ry. Co. v. Mount, 155 Okl. 275, 9 P.2d 11, 13 (Okla.1932); see also Missouri-Kansas-Texas Railroad v. Ingram, 322 F.2d 286, 291 (10th Cir.1963).

21 . Dirickson v. Mings, 910 P.2d 1015, 1020 (Okla.1996); Bradford Securities v. Plaza Bank and Trust, 653 P.2d 188, 190 (Okla.1982); Atherton, supra note 16 at 637; Smith v. Davis, 430 P.2d 799, 800 (Okla.1967).

22 . England v. Kilcrease, 456 P.2d 521 (Okla.1969); Continental Oil Co. v. Ryan, 392 P.2d 492 (Okla.1963).

23 . Jackson, supra note 1 at 1073; see also W. Page Keeton et al„ Prosser and Keeton on the Law op Torts § 45 (5th ed. 1984).

24 . Smith, supra note 21 at 800 [quoting Leslie v. Hammer, 194 Okl. 535, 153 P.2d 101, 102 Syl. 1 (Okla.1944)]; Norman, supra, note 15 at 278.

25 . Ingram, supra note 20 at 291.

26 . In order for a duly to arise, those persons bearing the duty’s onus must have knowledge that their acts or omissions involve danger to another. Larrimore v. American Nat. Ins. Co., 184 Okl. 614, 89 P.2d 340, 345 (Okla.1939).

27 . Herpes, the country’s most prevalent sexually transmitted disease, currently affects 31 million Americans — ten times as many people as were known to have the disease in 1966. Sharlene A. McEvoy, “Tort Liability for Sexually Transmitted Diseases", 23-SUM Brief 14 (Summer, 1994).

28 . For a discussion of the evolution of a cause into a condition, see Thompson, supra note 12 at 264; Thur v. Dunkley, 474 P.2d 403, 405 (Okla.1970); Norman, supra note 15 204 P.2d at 279.

29 .See Thompson, supra note 12 at 264; Zidell Trust, supra note 17 at 394.

30 . In 1976 Oklahoma abolished the civil causes of action for alienation of affections and seduction of a spouse. 76 O.S.1991 § 8.1. Hence, Lockhart’s emotional distress attributable to her husband’s affair with Loosen is not compensable.

31 . See Kraszewski v. Baptist Medical, 916 P.2d 241, 243 n. 1 (Okla.1996). For further discussion of the dependent nature of this tort, see Burgess v. Superior Court (Gupta), 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197, 1200 (1992).