Happy new year 2017, from Ask Carolyn. My new year’s challenge to each of my readers: Try something in 2017 you have never tried before. Take a risk. Evaluate your 2016. What did you accomplish? Did you accomplish goals you set a year ago? What will your answer to these questions be on Jan. 1, 2018 – last year is gone, but this is a whole new year for your choices.
As for me, I am pleased to begin writing in year four for the Rhino Times. The year 2016 was a blessed one for me, with the birth of a second grandson, finishing my third book, Ask Carolyn Two, finishing my instrument rating as an airplane private pilot and managing Woodruff Family Law Group for its best year. What I’m up to in 2017 is a secret, but I have a plan. Do you? Make your plan now? Don’t be your own limitation. You can do it!
During Christmas, I found out something that is devastating. My husband had an affair, which he promises he has broken off. I am willing to forgive him and start the new year together afresh. This is the problem, and I need your advice. My husband has also contracted a sexually transmitted disease from this woman. He broke up with her when he had symptoms, and he confronted her. She confessed that she knew she had an STD but did not tell him until it was too late. He is infected and I am afraid I am too. I made a doctor’s appointment yesterday. Now, I’m writing you. Surely, we can make this woman suffer. Any thoughts, Carolyn?
Carolyn Answers …
Practically speaking, you and your husband should both get the best medical advice available. You are wise to make the doctor’s appointment. For transparency, you should require your husband to show you his medical records. He should allow you and your doctor to discuss the situation with his doctor and him. So much for the political correctness of HIPAA medical secrecy in this situation.
Do you or your husband have a cause of action against this apparently contagious person? You are quite possibly in luck. North Carolina recognizes the tort cause of action known as Negligent Infliction of a Sexually Transmitted Disease (NISTD). Let’s explore this claim against this female.
There is a duty to abstain from sex, or at a minimum a duty to warn a potential sexual partner, if one has a contagious STD. This duty to warn is recognized in many states, including North Carolina. One case in the North Carolina Court of Appeals that explores this duty to warn is Carsanaro v. Colvin, out of Orange County.
Mr. Carsanaro sued Mr. Colvin for NISTD after Mrs. Carsanaro and Mr. Colvin had an affair. Mrs. Carsanaro told her husband that she thought she got genital herpes from Mr. Colvin. So, under the principle of duty to warn, Mr. Colvin had a duty to at least warn Mrs. Carsanaro that he had herpes.
But the question then becomes, what duty does Mr. Colvin have to warn his paramour’s husband. The answer to this question rests on the legal principles of “legal foreseeability” and “intervening cause.”
Clearly, it is legally foreseeable that Mr. and Mrs. Carsanaro would have sex with each other. So who had the duty to warn Mr. Carsanaro? Is it his wife, Mrs. Carsanaro, or is it Mr. Colvin?
The answer is that Mr. Colvin has the duty to warn Mr. Carsanaro until Mrs. Carsanaro has knowledge of herpes. Once she has knowledge that she is having an extramarital affair with a man with herpes (even if she has no symptoms), the duty becomes Mrs. Carsanaro’s duty to warn her husband.
In this week’s Ask Carolyn question, it seems that the duty to you still is with your husband’s ex-paramour, if your husband made the disclosure to you as soon as he knew.
I had a rough year in 2016. I left my husband as a victim of domestic violence.
I need some time off work to recover. I do not have any paid time off. I used all the time off dealing with my legal problems. Do I have any rights regarding taking time off? I need to recover. I am getting some alimony, but I do not want to lose my job. Any help you can give me will be appreciated.
Carolyn Answers …
North Carolina is a work at will state, and there is only one federal law that might help you under limited circumstances. That one federal law is the Family Medical Leave Act, but the FMLA only applies to employers of 50 people or more. So that is the first question. Are you currently employed by an employer large enough to be covered?
The next question is whether you have a medical issue that is covered. Frequently, domestic violence victims have post traumatic stress disorder (PTSD). You will need to talk to your medical doctor or psychologist to see if you have a medical diagnosis that qualifies for FMLA.
If you are with a large employer and you have a proper medical issue, you are entitled under federal law to 12 weeks of unpaid leave per the calendar year. Hope you qualify and can get the rest you need. Have a happy and safe new year.
Send questions on family law and divorce to email@example.com, or P.O. Box 9023, Greensboro 27427 or at Ask Carolyn’s comment section at rhinotimes.com.
Note that answers are intended to provide general legal information and are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.