MacY's California, Inc. v. Superior Court

Catherine Jenae Tussy-Garber (Tussy-Garber) allegedly pricked her finger on a hypodermic needle in the pocket of a jacket that had been returned to Macy’s California, Inc. (Macy’s), by another customer. Tussy-Garber is now suing Macy’s for negligence, asserting a right to emotional distress damages because she fears contracting acquired immune deficiency syndrome (AIDS) or another serious or lethal disease. Macy’s challenges availability of emotional distress damages for fear of disease where no physical harm has been shown. We conclude that the superior court erred in concluding that a needle stick, without more, entitled Tussy-Garber to seek emotional distress damages.

Facts and Procedures

According to her declaration, on February 10, 1993, while trying on a “jean jacket” at a Macy’s store in Fairfield, Tussy-Garber placed her hand in one of the pockets and pricked her finger on a hypodermic needle. The pocket contained two hypodermic needles, a knife and a metal pipe possibly used for ingesting cocaine. Tussy-Garber promptly sought hepatitis treatment and testing for the HIV. She admits that she has nevef tested positive for HIV and would stand only a 1 in 200,000…