Monday, October 26, 2009
C.A.: Boxing Referee May Sue State for HIV Exposure Risk
By KENNETH OFGANG, Staff Writer
The state may be liable to a boxing referee who could have been exposed to HIV because it allowed a boxer to fight without proof of a negative test for the virus, the Fourth District Court of Appeal ruled Friday.
Div. Two reinstated a suit by Ray Corona Sr. and his wife. They allege that the State Athletic Commission was negligent in permitting a June 2005 bout to go forward after one of the fighters had an “inconclusive” test. Corona is a veteran referee, and portrayed one of the referees in Clint Eastwood’s 2004 boxing movie, “Million Dollar Baby.”
According to news accounts, Tommy Perez of Las Vegas was knocked out by Guillermo Ruiz of Coachella in the third round of a scheduled four-round fight at the Doubletree Hotel in Ontario.
A medical report showing that Perez had an inconclusive HIV test “slipped through the cracks,” the matchmaker told a reporter, while commission officials declined comment, citing privacy issues.
Perez later took a second test, after returning home to Las Vegas, which showed that he had the virus, then reportedly returned to his family home in Mexico. Corona said he had to take HIV drugs and miss time from work before it was determined that he had not contracted the virus.
Experts have said that the splashing of blood during a boxing match may expose an opposing fighter or a referee to HIV, although the risk is said to be extremely low.
In his complaint against the state, filed in San Bernardino Superior Court, the Coronas alleged that the commission breached a mandatory duty to prevent a fighter from boxing without a recent negative test report. The duty was asserted to be based on Business and Professions Code Sec. 18712.
The relevant portion of the statute reads:
“[A]ny person applying for a license or the renewal of a license as a professional boxer...shall present documentary evidence satisfactory to the commission that the applicant has been administered a test, by a laboratory in the United States that possesses a certificate under the Clinical Laboratory Improvement Act to detect...the human immunodeficiency virus (HIV)[,]...hepatitis C virus (HCV) and...hepatitis B virus (HBV) within 30 days prior to the date of the application and that the results of all three tests are negative. A negative report for all three tests shall also be required of a professional boxer...prior to competing in a match that will occur 180 days or more after the date of the tests submitted for the issuance or renewal of his or her license.”
A San Bernardino Superior Court judge sustained the state’s demurrer, finding that the statute only imposes mandatory duties on boxers.
Presiding Justice Manuel Ramirez, writing Friday for the Court of Appeal, disagreed.
“While we would prefer that the Legislature had used more active language, such as, ‘the Commission shall require a negative report...,’ rather than the passive, ‘[a] negative report...shall also be required...,’ the only reasonable reading of Business and Professions Code section 18712 is that the Commission may not allow a boxer to box without submitting very specific test results, in a very specific form, at specific intervals.”
The specificity of that language distinguishes the statute from others that have been held not to impose mandatory duties, Ramirez concluded, differentiating the case from those cited by the state.
Those cases held that the state could not be held liable for the murder of a sheriff’s deputy based on its failure to notify a gun dealer that the killer—who had applied to purchase a handgun—had been found mentally ill in another state, or to the family of an injured child based on its failure to investigate a daycare provider, or to the family of a child killed by a parolee based in its failure to have assessed whether the parolee was likely to re-offend.
The relevant statutes in those cases, Ramirez explained, either did not impose the duties asserted by the plaintiffs or granted significant discretion as to how those duties were to be carried out. Sec. 18712, he said in contrast, “did not give the Commission any discretion to license a boxer or allow a boxer to fight if the boxer does not provide the required test results in the correct form at the specified times.”
The jurist also rejected the contention that the state was immune under Government Code Sec. 814.4, which provides that a public entity cannot be held liable “for an injury caused by the issuance of...any permit, license...or similar authorization where the public entity...is authorized by enactment to determine whether or not such authorization should be issued.”
The immunity does not apply, Ramirez said, because the commission had no right to allow Perez to fight without a negative HIV test report.
Attorneys on appeal were John Burton for Corona and Deputy Attorneys General Marsha S. Miller, Karen S. Darling and Donna M. Dean for the state.
The case is Corona v. State of California, 09 S.O.S. 6119.
Copyright 2009, Metropolitan News Company