New York State Court of Claims

New York State Court of Claims

STEEVES v. THE STATE OF NEW YORK, #2001-013-015, Claim No. 104092, Motion No. M-63509


Synopsis


The State does not owe a duty to the wife of a correction officer who contracts tuberculosis, allegedly as a result of his employment, where the State had no knowledge that he had the disease.

Case Information

UID:
2001-013-015
Claimant(s):
TOKUKO STEEVES and EDWARD STEEVES
Claimant short name:
STEEVES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104092
Motion number(s):
M-63509
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
LEWIS & LEWISBY: ALAN M. LEWIS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September , 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On August 15, 2001, the following papers were read on Defendant's motion for an order of dismissal.
1. Notice of Motion and Supporting Affirmation of Reynolds E. Hahn, Esq. ("Hahn Affirmation"), with annexed Exhibit and Memorandum of Law

2. Affidavit in Opposition of Allan Lewis, Esq. ("Lewis Affidavit"), with annexed Exhibits

3. Defendant's Reply Affirmation

4. Filed papers: Claim

Claimant Tokuko Steeves was diagnosed as suffering from tuberculosis in July 2000. The claim alleges that she contracted the disease from her husband who, in turn, had contracted it from an Orleans Correctional Facility (Orleans) inmate. In the claim the State's liability is premised on its negligence in allowing her husband, Edward Steeves, to come into contact with the inmate, one Anthony Taylor, and on its negligent supervision of Taylor. A second cause of action -- for derivative injuries only -- is brought on behalf of the husband, Edward Steeves. In the papers submitted in opposition to this motion, Claimants also allege that Defendant was further negligent when members of the facility medical staff postponed a retest of Edward Steeves and when they failed to warn him, and his wife, that precautions should be taken until the results of the retest were known. Although Claimants would be required to apply for and receive permission to amend their claim to allege these additional acts of negligence, for the purposes of this motion I will consider that such an amendment had occurred.

The relevant facts are presented in the affidavit of Edward Steeves (Lewis Affidavit, Exhibit A). Steeves states that he is a correction officer at Orleans and, as part of that facility's regular, mandatory screening process, he was tested for tuberculosis in January 2000. The results of that test were negative. During January 2000 he was in contact with Inmate Taylor on "multiple occasions," and in late January or early February, he was informed that Taylor had active tuberculosis. In mid to late February, Steeves, along with many other employees, received a letter informing him that he might have been exposed to tuberculosis and advising him to be tested for the disease. He contacted the facility medical department and was told that, because he had tested negative in January and because his contact with Taylor was so recent, he should wait three months before being retested. The affidavit contains no suggestion that he disagreed with this course of action or that he was in any way prevented from having the test performed by a private physician. In May 2000, Steeves was retested, and this time the results were positive. As noted above, his wife tested positive for tuberculosis in July 2000. Claimants do not assert that any employee or officer of Defendant knew that Steeves suffered from the disease prior to his positive test result in May 2000, although they allege, without any factual or scientific support, that a test administered in late February would have revealed the presence of the disease.

A defendant -- whether it be a physician, a hospital, a medical lab, or an employer -- has no duty to warn third parties, including family members, of the possibility that they may contract a communicable disease when it has no knowledge that the person to whom it may owe a duty of care -- whether it be a patient or an employee -- has in fact contracted the disease. Public Health Law §2222(1), which places on physicians the duty to "to take all proper precautions and to give proper instructions to provide for the safety of all individuals occupying the same house or apartment" when his or her patient is diagnosed with tuberculosis has no application, even to physicians, when there has been no diagnosis (Ellis v Peter, 211 AD2d 353; Sorgente v Richmond Mem. Hosp., 142 Misc 2d 870). Furthermore, in New York, there is no common law duty running from physicians to third parties (Ellis, supra; Sorgente, supra), except in very limited circumstances which do not apply here (see, e.g., Tenuto v Lederle Labs., Div. of American Cyanamid Co., 207 AD2d 541 [duty to father of infant exposed to polio virus in excrement of child who received an inoculation with "live" virus]; Miller v Rivard, 180 AD2d 331[duty to wife of man on whom a vasectomy was negligently performed]).

Claimants rely on the decision in Wojcik v Aluminum Co. of America (18 Misc 2d 740) to argue that a viable cause of action has been stated. In that case, an employee and the wife of the employee were held to have stated a cause of action against the husband's employer, after it failed to notify them that x-rays taken at the workplace revealed the employee was suffering from tuberculosis. The court held that Workers' Compensation was not the employee's exclusive remedy for tortious acts of the employer falling outside that statute's scope and, in addition, that the complaint set forth a cause of action against the employer who had gratuitously undertaken a program of providing periodic medical screening and informing employees of any abnormalities that showed up in the screening, so that its employees justifiably relied on it to carry out that practice (id., at 744, citing to Restatement of the Law of Torts, Vol. 2, § 325). With respect to the cause of action asserted on behalf of the wife, the court held that the employer could be liable to her because injury to her was a foreseeable consequence of their failure to fulfill their duty to her husband: "defendant could have reasonably anticipated that the plaintiff husband, without knowledge of his contagious disease, would not take the precautionary measures necessary to prevent infecting others, including his wife, with the germs of the disease" (id., at 746). It should be noted that some of the authorities relied upon to support that holding relate to the duties of physicians and that the result does not entirely agree with the more recent, higher-court decisions discussed above.

While the decision in Wojcik has frequently been cited by courts in other jurisdictions and, on occasion, has been used to support imposing a duty on physicians or employers to warn spouses and family members who are in danger of contracting an infectious disease (see, e. g., Bolieu v Sisters of Providence in Washington, 953 P2d 1233, 1236 [Alaska ]), no New York court has followed, or even discussed, the ruling as it relates to the third party. In any event, assuming that it is still good law, Wojcik does not control here because, once again, the employer in that case was aware that its employee had tested positive for the disease, while in the instant case, Defendant had no such knowledge.

I conclude that, particularly in light of the fact that Defendant did not know that Claimant Edward Steeves had contracted tuberculosis, it owed no duty toward Claimant Tokuko Steeves to warn her of the risk of infection or take any other steps to protect her and, thus, that the claim brought on her behalf, as well as the related derivative claim, fails to state a cause of action on which recovery may be had.

Defendant's motion is granted and the claim is dismissed.


September , 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims