Legal News

Toddler's Exposure to Used Condom Is 'Serious' Injury

By Matthew Heller, Editor

A woman whose 2-year-old son swallowed a used condom left in a hotel room can sue the hotel operator for the emotional pain of witnessing his "near fatal" choking, a New Jersey judge has ruled in a first-of-its-kind decision.

Citing the "uniqueness" of the case, U.S. District Judge Joseph H. Rodriguez said Amy Wolfe had a triable bystander claim for negligent infliction of emotional distress (NIED) even though her son Ryan - who allegedly ingested the contents of the condom - has not tested positive for an infectious disease.

The NIED claim is part of a complaint that the Wolfe family filed against the operator of the Homewood Suites by Hilton Hotel in Mount Laurel, N.J. Under New Jersey law, an NIED plaintiff must show, among other things, "the death or serious physical injury of another caused by defendant's negligence." Portee v. Jaffee, 417 A.2d 521 (1980).

H.W. Heritage Inn of Mt. Laurel argued in a motion for summary judgment that "As disturbing as the condom incident may have been for Mrs. Wolfe, there is absolutely no evidence of 'death or serious injury' to [Ryan]," noting that he suffered no physical injury and "did not contract any infectious diseases as a result of the incident."

But Rodriguez indicated that Amy Wolfe was not required to show Ryan was actually exposed to an infectious disease, but could recover damages based on her "reasonable apprehension" that he would be infected.

"[T]his Court is of the opinion that the Portee claims in this particular case, due to the uniqueness of the circumstances, should go to the jury," he concluded in his opinion.

A Wyoming judge in 2005 dismissed the emotional distress claim of a couple whose 2-year-old son swallowed a used condom he had found in a room at a Motel 6 because there was no evidence of a serious injury to the boy. But New Jersey takes a relatively generous view of NIED claims.

"[N]o tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure," the New Jersey Supreme Court said in Portee.

The Wolfes checked into the Homewood Suites on Jan. 2, 2009 and the following morning, Amy, who was tending to another child in the bathroom of their suite, heard Ryan choking in the bedroom, where he had been watching TV. The condom was stuck in his airway but his mother managed to get it out.

"He was blue and it was hard to get my hand down his throat," she said in a deposition.

Amy Wolfe is seeking NIED damages for "her contemporaneous observation of the near fatal choking and the ingestion of bodily fluids and bloodborne pathogens." She has relied in part on Williamson v. Waldman, 677 A. 2d 1129 (1996), in which a New Jersey appeals court upheld an NIED claim based on fear or exposure to an infectious disease.

The operator of the Homewood Suites said Williamson is distinguishable because "it dealt with a plaintiff who was personally pricked with a lancet ... Here, defendants are not moving for summary judgment on [Ryan's] claim."

But Rodriguez accepted "the guidance [Williamson] provides as to the cause of action of negligent infliction of emotional distress in New Jersey." The principles underlying an NIED claim, he said, are more important than whether "the source of the emotional distress is an injury to the claimant" or an injury to another person.

Amy Wolfe has testified that she has been "a mess" since the condom incident. "I relive the situation over and over again, all day long ... Basically, all day long it's the nonstop DVD of what happened, start to finish," she said.

By Matthew Heller
On Point

Full post as published by On Point News on January 06, 2011 (boomark / email).