Brzoska v. Olson

668 A.2d 1355 (Del. 1995)



A court may grant summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Del. Super. R. Ct. Civ. P. 56(c). In deciding whether there is a disputed issue for trial, the court must view the evidence in the light most favorable to the non-moving party. 


Appellant patients filed an action against appellee administrator and insurer for damages caused by the patients asserted exposure to HIV/AIDS while receiving dental treatment by the administrator's decedent. The decedent was a dentist who died from AIDS.  The appellant patients were treated after the decedent learned of his infection. They filed an action to recover damages under negligence, battery, and misrepresentation theories. The trial court granted the administrator and insurer's motion for summary judgment.  The patients appealed the ruling with regard to the battery and misrepresentation claims. The court held that the fear of contracting a disease without exposure to a disease-causing agent is per se unreasonable and, therefore, affirmed the summary judgment as to the battery allegations. The court reversed and remanded as to the misrepresentation claims as to any patients who had received false representations, with any recovery limited to economic damages.


Did the trial court err in granting summary judgment? 




On appeal the court held that: (1) there could be no recovery for fear of contracting AIDS in the absence of a showing of physical harm, (2) there was no battery caused by the decedent's touching in the course of treatment without a physical injury or "outrageous" conduct, (3) the mere fear of AIDS was insufficient as a matter of law to raise a fact issue in the absence of actual rather than potential exposure to HIV, (4) there was no battery based upon a lack of informed consent where the patients received the procedures they had consented to, (5) there was no basis for a mental anguish recovery where none of the patients had tested positive for HIV, and (6) a material fact issue remained as to whether some of the patients received false representations and whether the patients had a duty to take a free "public" AIDS test. Plaintiffs have failed to demonstrate any evidence of actual exposure to potential HIV transmission beyond mere unsupported supposition.

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