Yulia Kohl v. Norman Kohl, Jr., 4D13-1194 (Fla. 4th DCA Oct. 1, 2014)

This case involves suing a former spouse for negligent transmission of a sexually transmitted disease. In this case, the Fourth District Court of Appeal affirmed dismissal of the former wife’s case against her former husband for transmitting human papilloma virus (HPV).

The former wife’s complaint claimed damages from her former husband based on his failure to warn, while married, that he had HPV. She claimed “assault by way of the transmission of” HPV. Apparently, she first found out she had HPV when her routine pap smear revealed the disease.

The complaint claimed that the former husband engaged in high-risk sexual behavior by having sexual relations outside the marriage and sleeping with prostitutes. The former wife also contended that the former husband “knew or should have known he was exposed to HPV as his ex-wife had undergone a hysterectomy.”

As a starting point, the reader should know that a specific statute, section 384.24, Florida Statutes (2013), makes it a crime to spread enumerated STDs. The enumerated list does not mention HPV.

Though the 4th DCA discussed section 384.24, it quickly determined that the appellant did not track the above statute and concluded that the trial judge, Judge James W. McCann, correctly dismissed the case. As authority, Judge Gross, writing for the Fourth District, cited Gabriel v. Tripp, 576 So. 2d 404 (Fla. 2d DCA 1991).

Gabriel determined that there is a civil cause of action pursuant to the statute but that the statute must be tracked in order to properly state a claim. The statute requires that: 1) the transmitter must have actual knowledge of infection; and 2) that they were informed that the disease could be transmitted through sexual intercourse. The statute has a built-in defense if the other person has been informed of the presence of the STD and consents to the sexual intercourse. The 2nd DCA determined that a common law cause of action exists, but that it is tied to the statute.

The 4th DCA, Unlike the 2nd DCA, Broadened the Statute

The 4th DCA then considered whether there is a common law negligence cause of action where one’s “failure to use that degree of care which a reasonably careful person would use under like circumstances” causes injury. The court reasoned that common law negligence is open-ended and divorced from intent.

The opinion, though suggesting that a suit “must” be predicated on a statutory violation, still stated that a claimant must still prove all elements of actionable negligence. Further, the 4th DCA, traversing beyond the express statute, determined that even though HPV is not mentioned in section 384.24, “its transmission could still form the basis of a common law negligence claim.”

The Court Uses Common Law to Address What the Legislature Did Not Address

The 4th DCA reasoned that the common law is not static but rather “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 court went on to explain that the common law “must keep pace with changes in our society’ and ‘may [even] be altered when the 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). Then, the 4th DCA wrote that the common law can evolve with society to incorporate contemporary standards of conduct reflected in legislative enactments.

The 4th DCA determined that because negligence is a traditional tort, negligent transmission of a sexually transmitted disease is “merely a variant of it.” Thus, the 4th DCA joined some other states that consider negligent transmission as a common law negligence action.

The elements are:

  • existence of a duty
  • breach of the duty causation
  • damages

The 4th DCA then applied the “foreseeable zone of risk” test to determine the legal duty, reasoning that it is foreseeable that a sexual partner can be infected if the transmitter knows of or suffers symptoms of the disease. But, even if the transmitter did not have actual knowledge, the 4th DCA held that constructive knowledge could be sufficient. The 4th DCA gave two examples of knowledge: 1) the transmitter had been formally diagnosed with an STD by a medical professional; and 2) the existence of obvious symptoms.

The 4th DCA Examines the Facts in This Case and Requires Actual Knowledge of HPV

The complaint claimed that the former husband engaged in high-risk sexual behavior by having sexual relations outside the marriage and sleeping with prostitutes. The former wife also contended that the former “knew or should-have-known he was exposed to HPV as his ex-wife had undergone a hysterectomy.”

The 4th DCA first determined that “high-risk” sexual activity does not satisfy the foreseeability standard, stating that: “[w]e decline to open Pandora’s Box by imposing a duty in negligence for engaging in high-risk sexual behavior.”

Then, the court also refused to find that a legal duty existed because of the prior wife’s hysterectomy. Thus, in the end, the 4th DCA affirmed the trial court’s dismissal because the wife failed to state a claim for negligent transmission of a sexually transmissible disease.

The 4th DCA determined that HPV presents a difficult challenge because many HPV carriers have no symptoms. The court, citing to a government website, recognized that the CDC does not recommend HPV tests for men. The court further recognized HPV’s effects may remain dormant for years or even decades. Thus, the court held that only a person with actual knowledge that he or she has HPV should be subject to liability in negligence for its transmission.

Lessons for Practitioners

First and foremost: Be careful when you file a lawsuit because you never know where it will end up. In this case, a couples’ private life is now part of the reporter system for all time. Question: Is this where you want a private issue to be exposed?

Next: Practitioners need to know that their clients could face potential civil and criminal liability for transmitting an STD. So, even if a criminal prosecution ends up in a nolle prosequi, there could be ensuing civil claims for damages. Last: There is certainly a moral lesson to be learned from this case. But, you do not need me to explain it.

This article was first published on the Law.com Network on October 15, 2014.