Yulia Forest Kohl v. Norman Dean Kohl, Jr. , 149 So. 3d 127 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
YULIA FOREST KOHL,
Appellant,
v.
NORMAN DEAN KOHL, JR.,
Appellee.
No. 4D13-1194
[October 1, 2014]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; James W. McCann, Judge; L.T. Case No. 43-
2009DR000083.
James P. Curry, Curry, PL, Jupiter, for appellant.
Bryan J. Yarnell of Gilbert|Yarnell, Palm Beach Gardens, for appellee.
GROSS, J.
The circuit court dismissed appellant Yulia Forest Kohl’s claim of
negligent transmission of a sexually transmissible disease with prejudice
for her failure to track the language of section 384.24, Florida Statutes
(2013). An issue on appeal is one of first impression for this state: whether
a cause of action for negligent transmission of a sexually transmissible
disease may be asserted upon common law negligence principles.
Although we hold that such a claim may sound in common law negligence,
we nonetheless affirm the dismissal of the complaint; the pleading failed
to demonstrate even the defendant’s constructive knowledge that he
carried a sexually transmissible disease, much less the actual knowledge
that would be required to state a claim for transmitting the specific disease
at issue in this case.
The Pleadings in the Circuit Court
On an appeal from an order granting a motion to dismiss, we “treat the
factual allegations of the complaint as true and . . . consider those
allegations in the light most favorable to the plaintiff[].” Hollywood Lakes
Section Civic Ass’n v. City of Hollywood, 676 So. 2d 500, 501 (Fla. 4th DCA
1996) (citing Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.
2d 1028, 1030 (Fla. 4th DCA 1994)).
In January 2009, the former wife filed a two-count petition in the circuit
court, seeking (I) to dissolve her marriage with appellee Norman Kohl (“the
former husband”) and (II) to extract damages from him “for assault by way
of the transmission of the” human papillomavirus (“HPV”). Upon the
former husband’s motion, the trial court severed Count II, permitting entry
of an amended final judgment of dissolution of marriage.
By June 2012, the former wife’s second amended complaint attempted
to state a cause of action for negligent transmission of a sexually
transmissible disease, specifically HPV. This claim was based upon the
former husband’s failure to warn the former wife during their marriage
that he had HPV. The disease manifested in June 2008, when the former
wife learned from a routine pap smear that she had contracted “high risk”
HPV, resulting in the development of “precancerous cell changes.”
The complaint asserted two bases to establish the former husband’s
constructive knowledge that he had the virus. First, the pleading alleged
that the former husband “engaged in extra-marital affairs and hired
multiple prostitutes and escorts during the course of their marriage.”
Second, the complaint asserted that the former husband “knew or should
have known he was exposed to HPV as his ex-wife [(prior to the former
wife)] had undergone a hysterectomy.” There were no allegations that the
former husband had been diagnosed with HPV or that he had experienced
symptoms of the disease.
Given such characterization of the former husband’s knowledge that he
carried HPV, the former wife alleged that her former husband “had a duty
of reasonable care . . . either to warn her or take other precautions to
prevent the spread of the [HPV] with which [former husband] was infected.”
By failing to issue such a warning, the pleading alleged that the former
husband breached this duty and, in turn, proximately caused the former
wife to contract HPV, resulting in damages for “past and future pain and
suffering, past and future medical expenses, past and future mental pain
and suffering, and past and future loss of full function of mind and body.”
Procedural Posture
The former husband moved to dismiss the negligence count, asserting
pursuant to the Second District’s decision in Gabriel v. Tripp, 576 So. 2d
404 (Fla. 2d DCA 1991), that a civil cause of action for negligent
-2-
transmission of a sexually transmissible disease is cognizable only where
the plaintiff tracks the language of section 384.24, Florida Statutes (2013).
To satisfy the statute, the former husband contended that the former wife
was required to allege (1) that he had actual knowledge he “was infected
with one of the sexually transmissible diseases enumerated in section
384.24” and (2) that he “had been informed that said disease could be
communicated through sexual intercourse.” The former husband argued
the complaint alleged “no basis for asserting [he] ‘knew’ he had HPV.”
The circuit court dismissed the negligence count with prejudice, due
primarily to the former wife’s failure to “track the allegations required for
a civil action predicated upon § 384.24 Florida Statutes.” Classifying the
matter as an “attempt to create a new cause of action,” the trial court
explained that “Florida courts have required plaintiffs to strictly track th[e]
statute.” Thus, the former wife failed to state a cause of action in
negligence, since she did not assert “actual knowledge of infection on the
part of the tortfeasor or actual knowledge that the infection could be
transmitted through sexual intercourse.”
Statutory Violations and Negligence
“Because the issue of whether a complaint is sufficient to state a cause
of action is a question of law,” our review is de novo. James v. Crews, 132
So. 3d 896, 898 (Fla. 1st DCA 2014) (citations omitted).
As developed by the common law, a cause of action for negligence arises
where one’s “failure to use that degree of care which a reasonably careful
person would use under like circumstances” causes injury. London v. Atl.
Mut. Ins. Co., 689 So. 2d 424, 425 (Fla. 4th DCA 1997). Common law
negligence is open-ended and divorced from intent, Booth v. Mary Carter
Paint Co., 182 So. 2d 292, 299 (Fla. 2d DCA 1966), “allow[ing] the plaintiff
to claim that any given conduct was negligent.” Dan B. Dobbs, The Law
of Torts § 110, at 257 (2000). Its focus is on the relationship between the
actor and person in fact injured. See, e.g., Palsgraf v. Long Island R.R. Co.,
162 N.E. 99, 101 (N.Y. 1928).
While negligence has its roots in common law, legislative enactments
play an important role in shaping standards of conduct. W. Page Keeton
et al., Handbook on the Law of Torts § 35 (3d ed. 1964). Proof that a
defendant violated a statute—including a criminal statute—can be
categorized in a negligence case in one of three ways, depending on the
statute’s purpose:
-3-
(1) violation of a strict liability statute designed to protect a
particular class of persons who are unable to protect
themselves, constituting negligence per se; (2) violation of a
statute establishing a duty to take precautions to protect a
particular class of persons from a particular type of injury,
also constituting negligence per se; (3) violation of any other
kind of statute, constituting mere prima facie evidence of
negligence.
Chevron U.S.A., Inc. v. Forbes, 783 So. 2d 1215, 1219 (Fla. 4th DCA 2001)
(quoting Grand Union Co. v. Rocker, 454 So. 2d 14, 15 (Fla. 3d DCA 1984)).
Focusing on the final category, Florida courts permit proof of a
statutory violation to serve as prima facie evidence of negligence because
“the standard of conduct or care embraced within such [a] legislative . . .
measure[ ] represent[s] a standard of at least reasonable care which should
be adhered to in the performance of any given activity.’” Dusine v. Golden
Shores Convalescent Ctr., Inc., 249 So. 2d 40, 41-42 (Fla. 2d DCA 1971)
(quoting Alford v. Meyer, 201 So. 2d 489, 491 (Fla. 1st DCA 1967)); see
also Fla. Std. Jury Instr. (Civ.) 401.9. Such statutory violation evidence
thus will not overhaul the negligence cause of action, as “the claimant still
needs to prove all elements of actionable negligence.” Tierney v. Black
Bros. Co., 852 F. Supp. 994, 1000 (M.D. Fla. 1994) (citing deJesus v.
Seaboard Coast Line R.R. Co., 281 So. 2d 198, 201 (Fla. 1973); Hurd v.
Munford, Inc., 378 So. 2d 86, 89 (Fla. 1st DCA1979)).
Negligent Transmission of a Sexually Transmissible Disease
Nationwide, courts “have long imposed liability on individuals who have
harmed others by transmitting communicable diseases,” paving the way
for recognition of “a cause of action for the negligent transmission of
sexually transmitted diseases.” John B. v. Superior Court, 137 P.3d 153,
159 (Cal. 2006). While Florida courts have embraced this national
consensus,1 see Hogan v. Tavzel, 660 So. 2d 350, 351 n.1 (Fla. 5th DCA
1995) (“Lawsuits on the negligent transmission of genital herpes have been
recognized in this state.” (citation omitted)); Gabriel v. Tripp, 576 So. 2d
404, 405 (Fla. 2d DCA 1991), Florida case law has suggested that such a
suit must be predicated on a statutory violation.
1
See, e.g., State v. Lankford, 102 A. 63 (Del. 1917); Crowell v. Crowell, 105 S.E.
206, 208 (N.C. 1920); Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 276-77 (Cal.
Ct. App. 1984); Berner v. Caldwell, 543 So. 2d 686, 690 (Ala. 1986), overruled on
other grounds by Ex parte Gen. Motors Corp., 769 So. 2d 903 (Ala. 1999); Long v.
Adams, 333 S.E.2d 852, 854-55 (Ga. Ct. App. 1985); Doe v. Johnson, 817 F.
Supp. 1382, 1393 (W.D. Mich. 1993).
-4-
This limitation on a common law cause of action derives from the
application of section 384.24, Florida Statutes (2013), a criminal statute
that makes it a first-degree misdemeanor to knowingly transmit certain
sexually transmissible diseases. See §§ 384.34, 775.082(4)(a),
775.083(1)(d), Fla. Stat. (2013). The statute provides in relevant part:
It is unlawful for any person who has chancroid, gonorrhea,
granuloma inguinale, lymphogranuloma venereum, genital
herpes simplex, chlamydia, nongonococcal urethritis (NGU),
pelvic inflammatory disease (PID)/acute salpingitis, or
syphilis, when such person knows he or she is infected with
one or more of these diseases and when such person has been
informed that he or she may communicate this disease to
another person through sexual intercourse, to have sexual
intercourse with any other person, unless such other person
has been informed of the presence of the sexually
transmissible disease and has consented to the sexual
intercourse.
§ 384.24(1), Fla. Stat. (2013).
In Gabriel, the Second District ostensibly made tracking section 384.24
a necessary component to a claim for negligent transmission of a sexually
transmissible disease. There, the trial court dismissed a negligence suit
in which the plaintiff attempted to track the language of section 384.24
and alleged she contracted genital herpes after engaging in sexual
intercourse with the defendant. 576 So. 2d at 404. The Second District
agreed with the plaintiff that “such a negligence cause of action is
cognizable in Florida.” Id. However, the court disagreed that a violation
of section 384.24 constitutes negligence per se, holding that the statute is
“not designed to protect a particular class of persons, but rather the public
in general.” Id. at 405. With that ruling, we do not disagree.
From this determination, the Second District explained “that if a
plaintiff is able to file a complaint that tracks section 384.24, that plaintiff
will have presented prima facie evidence of negligence, not absolute proof
of negligence.” Id. The court then took its reasoning a step further,
however, by holding that
in order to state a cognizable cause of action for negligent
transmission of a sexually transmissible disease, a plaintiff
must allege that the defendant knew he or she was infected
with one of the sexually transmissible diseases enumerated in
-5-
section 384.24, that the defendant had been informed that
said disease could be communicated through sexual
intercourse, and that the defendant had sexual intercourse
with the plaintiff without informing the plaintiff of the
presence of the disease and without securing the plaintiff's
consent to sexual intercourse under such circumstances.
Id. (emphasis added). Since the plaintiff in that case “fail[ed] to set forth
the allegations necessary to track section 384.24, Florida Statutes (1989),”
the court held she failed “state a cognizable cause of action.” Id.
We disagree with Gabriel’s broad holding that section 384.24
exclusively controls the elements of the negligence cause of action to which
it applies. Unless “liability is limited or abrogated by legislative
enactments,” Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997),
a plaintiff asserting common law negligence need not “establish the
violation of a relevant safety statute or regulation.” Wenzel v. Boyles
Galvanizing Co., 920 F.2d 778, 782 n.1 (11th Cir. 1991) (applying Florida
law). Further, a statute accomplishes such displacement only where it
“unequivocally states that it changes the common law, or is so repugnant
to the common law that the two cannot coexist.” Thornber v. City of Fort
Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). Therefore, in a case of
common law negligence based on the transmission of a sexually
transmissible disease, section 384.24 does not exclusively delineate the
elements of the cause of action. Nor are the diseases specified in section
384.24 the only diseases that might form the basis of a negligence cause
of action; even though HPV is not one of the diseases enumerated in the
statute, its transmission could still form the basis of a common law
negligence claim. A violation of section 384.24 is evidence of negligence,
not a catalog of the required elements of the cause of action. See Fla. Std.
Jury Instr. (Civ.) 401.9.2
The coexistence of common law negligence and a garden variety
statutory violation is grounded in the common law’s role as “an evolving
body of law.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 533 n.28 (1983). The common law “‘must
keep pace with changes in our society’ and ‘may [even] be altered when the
2
We note that, as a criminal statute, section 384.24 requires proof that a person
“know[ ] he or she is infected with one or more” of the enumerated diseases and
that “such person has been informed that he or she may communicate this
disease to another person through sexual intercourse.” Proof of the criminal
violation, which requires such knowing conduct, will also be powerful evidence
of negligence.
-6-
reason for the rule of law ceases to exist, or when the change is demanded
by public necessity or required to vindicate fundamental rights.’” Jews for
Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1104 (Fla. 2008) (quoting Stone v.
Wall, 734 So. 2d 1038, 1043 (Fla. 1999)). As one court has explained:
One of the great virtues of the common law is its dynamic
nature that makes it adaptable to the requirements of society
at the time of its application in court. There is not a rule of
the common law in force today that has not evolved from some
earlier rule of common law, gradually in some instances, more
suddenly in others, leaving the common law of today when
compared with the common law of centuries ago as different
as day is from night. The nature of the common law requires
that each time a rule of law is applied it be carefully
scrutinized to make sure that the conditions and needs of the
times have not so changed as to make further application of
it the instrument of injustice. Dean Pound posed the problem
admirably in his Interpretations of Legal History (1922) when
he stated, ‘Law must be stable, and yet it cannot stand still.’
Hack v. Hack, 433 A.2d 859, 868–69 (Pa. 1981). One way that common
law negligence evolves with changes in society is that it incorporates
contemporary standards of conduct evidenced by legislative enactments.
This is not, therefore, a case tasking us with “creating” a new cause of
action unrecognized at common law. See, e.g., Jews for Jesus, Inc., 997
So. 2d at 1104 (recognizing that “the tort of false light did not exist at
common law”); Estate of McCall v. United States, 134 So. 3d 894, 915 (Fla.
2014) (“At common law, Florida did not recognize a cause of action for
wrongful death.” (citation omitted)). Negligence is a traditional tort;
negligent transmission of a sexually transmissible disease is merely a
variant of it. We join the majority of states in recognizing negligent
transmission of a sexually transmissible disease as a common law
negligence action.
The Contours of the Claim
Our next task is to determine whether the former wife’s complaint
stated a cause of action. “To state a claim for negligence, the plaintiff must
allege the existence of a duty, breach of that duty, causation, and
damages.” Horton v. Freeman, 917 So. 2d 1064, 1066 (Fla. 4th DCA 2006).
Regarding the duty element, “‘imposition of a duty is nothing more than a
threshold requirement that if satisfied, merely opens the courthouse
doors.’” Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 763
-7-
(Fla. 4th DCA 2009) (quoting Whitt v. Silverman, 788 So. 2d 210, 221 (Fla.
2001)). As we have explained:
[W]hether a duty exists is a question of law for the court.
Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla.
2005). Crucial to the duty inquiry is “whether the defendant’s
conduct foreseeably create[s] a broader ‘zone of risk’ that
poses a general threat of harm to others.” McCain v. Fla.
Power Corp., 593 So. 2d 500, 502 (Fla. 1992). “[T]he zone of
risk created by a defendant defines the scope of the
defendant’s legal duty and the scope of the zone of risk is in
turn determined by the foreseeability of a risk of harm to
others.” Smith v. Fla. Power & Light Co., 857 So. 2d 224, 229
(Fla. 2d DCA 2003).
Knight v. Merhige, 133 So. 3d 1140, 1144-45 (Fla. 4th DCA 2014); see also
Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002) (“The core predicate for
imposing liability is one of reasonable foreseeability—the cornerstone of
our tort law.”).
“In applying the ‘foreseeable zone of risk’ test to determine the existence
of a legal duty, the supreme court has focused on the likelihood that a
defendant’s conduct will result in the type of injury suffered by the
plaintiff.” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co.,
715 So. 2d 343, 345 (Fla. 4th DCA 1998). When a sexually transmissible
disease—such as HPV—“is almost exclusively spread through sexual
contact, it is foreseeable that one’s sexual partner is susceptible to the
contagion if the infected partner is aware he has the disease or suffers
from symptoms of the disease.” Deuschle v. Jobe, 30 S.W.3d 215, 219 (Mo.
Ct. App. 2000). As a consequence, a person who knows that he or she
suffers such an illness has “a duty either to avoid sexual contact with
uninfected persons or, at least, to warn potential sex partners that they
have [it] before sexual contact occurs.” R.A.P. v. B.J.P., 428 N.W.2d 103,
108 (Minn. Ct. App. 1988); see also B.N. v. K.K., 538 A.2d 1175, 1179 (Md.
1988) (stating that an “infected person has a duty to take reasonable
precautions–whether by warning others or by avoiding contact with them–
to avoid transmitting the disease”); Hogan, 660 So. 2d at 352 (recognizing
that “[a] certain amount of trust and confidence exists in any intimate
relationship, at least to the extent that one sexual partner represents to
the other that he or she is free from venereal or other dangerous
contagious disease” (quoting Kathleen K. v. Robert B., 198 Cal. Rptr. 273,
276-77 (Cal. Ct. App. 1984)).
-8-
The linchpin of liability for imposing a legal duty to avoid negligent
transmission of a sexually transmissible disease is the defendant’s
knowledge that he or she harbors the disease. A duty will not lie where
the defendant is unaware of the condition, since the risk created by his or
her sexual activity is unforeseen. See Restatement (Second) of Torts § 289
cmt. b (1965) (stating that “[i]n order that an act may be negligent it is
necessary that the actor should realize that it involves a risk of causing
harm to some interest of another”).
In other states, courts require the plaintiff to “show that the defendant
had actual or constructive knowledge that he or she was infected with the
transmitted STD.” Endres v. Endres, 968 A.2d 336, 340 (Vt. 2008)
(emphasis added); Rossiter v. Evans, No. 08-1815, 2009 WL 5125922, at
*3 n.5 (Iowa Ct. App. Dec. 30, 2009) (“The majority of courts that have
dealt with this issue have concluded that constructive knowledge of a
sexually transmitted disease is sufficient for the imposition of liability.”);
John B., 137 P.3d at 160 (“[W]e are not persuaded that California should
be the first jurisdiction in the country to limit liability for the negligent
transmission of HIV only to those who have actual knowledge they are HIV
positive.”); Berner, 543 So. 2d at 689; McPherson v. McPherson, 712 A.2d
1043, 1046 (Me. 1998); Deuschle, 30 S.W.3d at 219. The availability of a
constructive knowledge showing is critical, since “[a] plaintiff will rarely be
able to show that a defendant had actual knowledge of his or her infection.”
Endres, 968 A.2d at 341.
In Florida, many negligence actions that are predicated upon the
defendant’s knowledge apply the “actual or constructive knowledge”
standard. See, e.g., Freeman v. BellSouth Telecomms., Inc., 954 So. 2d 45,
46-47 (Fla. 1st DCA 2007) (owner’s duty to maintain his or her premises
in a reasonably safe condition); Williams v. Joseph L. Rozier Machinery Co.,
135 So. 2d 763, 765 (Fla. 2d DCA 1961) (retailer of a defective product);
Grant v. Thornton, 749 So. 2d 529, 532 (Fla. 2d DCA 1999) (negligence
against landlord). We see no reason to depart from the majority view
incorporating actual or constructive knowledge into the elements of the
tort here at issue, particularly in light of our legislature’s declaration that
“sexually transmissible diseases constitute a serious and sometimes fatal
threat to the public and individual health and welfare of the people of the
state and to visitors to the state.” § 384.22, Fla. Stat. (2013).
Applying an actual or constructive knowledge standard, our sister
states have carved out two situations sufficient to impose a duty in
negligence for transmitting a sexually transmissible disease. First, a
defendant will have the requisite knowledge if he or she has been formally
diagnosed with a sexually transmissible disease by a medical professional.
-9-
See John B., 137 P.3d at 160. Second, the existence of obvious
symptoms—such as rashes, genital warts, or discharge—will suffice to
impute constructive knowledge. See, e.g., M.M.D. v. B.L.G., 467 N.W.2d
645, 647 (Minn. Ct. App. 1991) (“A reasonable person with recurring sores
on the genitals, who also has been told by a physician that a herpes culture
may be advisable, should know there is a reasonable possibility that
herpes has been contracted. In addition, a reasonable person should
know an acne-type condition on the genitals could be communicated to
others through sexual contact.”); Meany v. Meany, 639 So. 2d 229, 234
(La. 1994) (“Certainly, the presence of open, oozing genital sores indicates
a serious problem, whether or not a diagnosis exists. If a defendant has
experienced an attack or has sought medical advice concerning such
symptoms, he would likely be deemed by the courts to possess the
requisite knowledge, whether or not an actual diagnosis could be proved.”).
As we discuss below, however, a requirement of actual knowledge to
establish a legal duty is applicable where the disease at issue is HPV,
which is uniquely prevalent and often not symptomatic.
The Instant Case
In this case, the former wife’s complaint raises two allegations to infer
the former husband’s knowledge of his HPV infection. Both are insufficient
to satisfy even a constructive knowledge requirement, and are far below
the actual knowledge standard applicable to HPV.
First, the complaint contended that the former husband engaged in
“high-risk” sexual behavior, such as having sexual relations outside his
marriage and sleeping with prostitutes. Second, it contends that the
former husband “knew or should have known he was exposed to HPV as
his ex-wife had undergone a hysterectomy.” Both grounds seek to extend
liability beyond constructive knowledge, from what the defendant “should
have known,” to what “may have happened”—a privacy invasion we believe
“open[s] a door better left closed.” Doe v. Johnson, 817 F. Supp. 1382,
1393 (W.D. Mich. 1993).
The complaint’s “high-risk” allegation is similar to one rejected in
Endres, where a plaintiff asserting negligent transmission of HPV alleged
her husband “knew that by engaging in an extramarital relationship he
exposed himself to potential risk of becoming infected with an incurable
infection which he could then transmit.” 968 A.2d at 338. Surveying
Vermont case law and decisions from other jurisdictions, the court took a
“narrower” approach, requiring “at least some evidence that [the]
defendant had reason to know he was infected with an STD.” Id. at 341.
- 10 -
We agree with the approach in Endres, in that “constructive knowledge”
encompasses only “[k]nowledge that one using reasonable care or diligence
should have, and therefore that is attributed by law.” Black’s Law
Dictionary 888 (8th ed. 2004); see also Wells v. Palm Beach Kennel Club,
35 So. 2d 720, 721 (Fla. 1948). “Policy considerations strongly suggest
that merely engaging in ‘high risk’ activity does not satisfy the should-
have-known standard and does not, nor should it, impose a duty upon
individuals to disclose previous high-risk behavior.” Timothy J. Hasken,
A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between
Negligence and the Transmission of HPV, 95 Iowa L. Rev. 985, 998 (2010).
From a logistical standpoint, developing the contours of “high-risk”
behavior would be an unwieldy, unpredictable task. As the court
explained in Johnson, 817 F. Supp. at 1394:
[I]mposition of a duty to disclose one’s “high risk” status raises
a number of questions: as a matter of law, what is “high risk”
activity? Who is in this “high risk” group? How should “high
risk” be defined? Even if a workable definition of “high risk”
were discovered, would a duty be imposed on non-high risk
group members to disclose to every potential sex partner all
prior sexual contacts with partners who were so-called “high
risk” group members? Would the duty of disclosure
encompass prior sexual contacts with others known to be
“promiscuous” or “sexually active?” What are the equal
protection implications of imposing such a standard on a class
of people? What are the privacy implications of imposing such
a standard on a class of people? Would the duty eventually
extend to everyone who has had any sexual contact outside of
a monogamous relationship?
Id. Like Johnson, we decline to open Pandora’s box by imposing a duty in
negligence for engaging in “high risk” sexual behavior.
Similar logic bars the imposition of a legal duty based on the former
wife’s allegation that the former husband knew of his HPV because his
prior wife underwent a hysterectomy. A hysterectomy is “an operation to
remove a woman’s uterus.” Rebecca L. Van Court, Uterine Fibroids and
Women's Right to Choose, 26 J. Legal Med. 507, 510 (2005) (citation
omitted). It can be justified for myriad reasons, not the least of which
include: fibroid tumors, endometriosis, prolapse of the uterus, ovarian
cysts, cancer of the reproductive organs, ectopic pregnancy, pelvic
inflammatory disease, abnormal uterine bleeding, or premenstrual
syndrome. Gynecological Malpractice Litigation, 64 Am. Jur. Trials 1, § 70.
- 11 -
Without evidence linking the hysterectomy to HPV, there is no
justifiable reason to believe a reasonable person in the former husband’s
shoes should have known he had HPV from that fact alone. The former
husband’s “knowledge” in this case cannot be predicated on remote
chance and guesswork.
For these reasons, we hold that the former wife’s complaint failed to
state a claim for negligent transmission of a sexually transmissible
disease.
The Nature of HPV Requires That a Defendant Have Actual
Knowledge That He or She Harbors the Disease in Order to be
Liable in Common Law Negligence
As an alternative basis for affirmance, the former husband urges this
Court, upon public policy grounds, to hold that HPV is excluded from the
tort of negligent transmission of a sexually transmissible disease.
Although we do not agree that transmission of the disease should be
excluded from negligence liability, we agree that the tort can be based only
on a person’s actual knowledge that he or she carries the disease, and not
on constructive knowledge.
Recently, this Court confirmed that “[c]onsiderations of public policy
are appropriate in determining whether a negligence cause of action will
lie.” Knight, 133 So. 3d at 1150. As we explained:
Finding that a legal duty exists in a negligence case involves
the public policy decision that a “defendant should bear a
given loss, as opposed to distributing the loss among the
general public.” Levy v. Fla. Power & Light Co., 798 So. 2d
778, 780 (Fla. 4th DCA 2001), rev. den. 902 So. 2d 790 (Fla.
2005). A legal “[d]uty is an allocation of risk determined by
balancing the foreseeability of harm, in light of all the
circumstances, against the burden to be imposed.” Id.
(quoting Vaughan v. Eastern Edison Co., 719 N.E.2d 520, 523
(Mass. App. Ct. 1999)).
Id. at 1149-50 (quoting Biglen v. Fla. Power & Light Co., 910 So. 2d 405,
409 (Fla. 4th DCA 2005)).
The crux of the former husband’s argument is that “HPV presents
unique challenges in the context of assigning liability for injury” since it is
uniquely prevalent in modern society and many HPV carriers do not even
- 12 -
know they are infected. HPV is the most common and fastest growing
sexually transmissible infection in this country, affecting nearly 79 million
Americans, with 14 million people becoming newly infected each year.
Ctrs. For Disease Control & Prevention, Genital HPV Infection – Fact Sheet
(2014), http://cdc.gov/std/HPV/STDFact-HPV.htm. The result is that
“[a]t least half of sexually active men and women will contract HPV during
the course of their lifetimes.” Elizabeth J. Chen, Equal Protection: Why the
HPV Vaccine Should Be Mandated for Both Boys and Girls, 38 Wash. U.
J.L. & Pol'y 289, 292-93 (2012).
“HPV is most often contracted during vaginal and anal sex, but may
also be passed through other sexual activities including oral sex and
genital-to-genital contact.” Anthony D. Pegion and Andrew Zacher,
Mandating HPV Vaccinations in the United States, 14 DePaul J. Health Care
L. 169, 171 (2011). Currently, scientists have found “at least thirty
distinct strains of HPV that can infect human genitalia.” Deana A. Pollard,
Sex Torts, 91 Minn. L. Rev. 769, 776 (2007).
Low-risk strains may cause genital warts, whereas high-risk
strains may cause cervical cancer or other more rare types of
cancer. However, in the vast majority of HPV cases, the
infected persons are unaware of their infections. With most
HPV infections, the infected person experiences no symptoms
and there is no commercially available way to test for HPV.
Therefore, HPV is very often unknowingly passed between
sexual partners.
Hasken, supra, at 993. It has been said “the more dangerous strains cause
‘subclinical’ infections, so-called because they are invisible and often go
undetected or may lie dormant for years.” Pollard, supra, at 776.
Currently, the CDC does not even recommend an HPV test for men.
Ctrs. For Disease Control & Prevention, HPV and Men – Fact Sheet (2014),
http://cdc.gov/std/hpv/stdfact-hpv-and-men.htm. Thus, in most cases
— particularly those where the defendant is male — “establishing
constructive knowledge of infection will be difficult.” Endres, 968 A.2d at
343.
Given the disease’s prevalence, and the fact that its effects may remain
dormant for years if not decades, we hold that only a defendant with actual
knowledge that he or she has HPV should be subject to liability in
negligence for its transmission. Accordingly, a separate reason for
affirmance is the absence of allegations in the former wife’s second
- 13 -
amended complaint establishing the former husband’s actual knowledge
of his predicament.
Affirmed.
GERBER, J., concurs.
CONNER, J., concurs in result only.
* * *
Not final until disposition of timely filed motion for rehearing.
- 14 -