A couple whose 2-year-old son allegedly swallowed the contents of a used condom left in a hotel room have a sympathetic case against the hotel operator for exposing him to a “potentially fatal health hazard.” But the outcome of a similar case suggests any damages may be minimal.
HIV/AIDS-phobia permeates the suit filed last week by Steven and Amy Wolfe of Pittsfield, Mass., whose journey home with their three children from a vacation in Florida allegedly took a horrifying turn at the Homewood Suites by Hilton Hotel in Mount Laurel, N.J.
The family checked into the hotel Jan. 2 and the following morning, Amy Wolfe, who was tending to another child in the bathroom of their suite, heard Ryan, 22 months, choking in the bedroom, where he had been watching TV.
“[W]hen she immediately rushed to his aid, she was horrified to discover that the minor Plaintiff, Ryan M. Wolfe, had been chewing on (and was choking on) a used condom,” the complaint says, and by the time it was retrieved, Ryan “had ingested the contents therein/thereupon.”
The suit does not say whether Ryan has so far tested positive for any disease but seeks unspecified damages for negligence and infliction of emotional distress, alleging the failure of hotel staff to properly clean the suite before the Wolfes checked in has placed Ryan
at an increased risk to contract a sexually transmitted disease, including HIV or AIDS, or some other serious, life threatening, potentially fatal illness.
The defendants include Hilton Hotel Corp. and its parent company, The Blackstone Group. Unless testing shows Ryan was actually exposed to such an illness, however, there will be significant barriers to recovery of damages for the Wolfes.
In a very similar case -- albeit one involving less upscale accommodations -- Hitendra Bhakta and his wife sued Motel 6 after their 2-year-old son swallowed a used condom he had found in a room at the chain's property in Casper, Wyo. The boy allegedly tested positive for hepatitis B in January 2004 but follow-up tests conducted a few months later were negative.
Without evidence of a serious injury to the boy, a judge summarily dismissed the parents' bystander claims for negligent infliction of emotional distress (NIED). With a trial date pending, the case settled in August 2006 –- by that time, the Bhaktas were seeking damages only for their son's “permanent stigma” as a hepatitis B carrier.
According to a pretrial brief, Motel 6's witness list included a virology expert who would have testified to “the potential percentage of false positives” from blood tests for hepatitis B. Another witness, the motel's co-head housekeeper, would have testified "that she would have seen and did not ever see a condom under the beds” in the plaintiffs' room.
The Wolfes allege that the Homewood Suites places “unduly burdensome demands upon the housekeeping staff” and fails to properly train housekeepers –- which, if true, may help them show the condom was left by a previous guest. New Jersey also takes a relatively generous view of NIED claims.
“No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure,” the state Supreme Court said in Portee v. Jaffee, 417 A.2d 521 (1980). “The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.”
But in De Milio v. Schrager, 666 A.2d 627 (1995), a New Jersey Superior Court judge stressed that “a plaintiff may recover for emotional distress arising out of a fear of AIDS only where there exists proof of actual exposure to the AIDS virus and where a scientifically acknowledged channel of transmission has been articulated.”
By Matthew Heller
2/3/09 
