Facts
- Jane Doe and Richard Roe (pseudonyms used for privacy) were co-workers who began dating and became sexually involved in early 1985.
- Shortly after Roe asked Doe out, they discussed venereal diseases. Doe said she had none and would not put herself in a position to contract one.
- Roe responded, “I don’t blame you, I wouldn’t want one either,” but did not disclose that he previously had genital herpes.
- Roe had experienced three genital herpes outbreaks before the relationship: one in 1978 (diagnosed by a physician), a recurrence in 1979 (confirmed by another physician), and another outbreak in 1981.
- Over about four months, Doe and Roe had sexual intercourse once or twice per week, typically without condoms.
- Roe did not have visible lesions during the relationship. He claimed he believed he could not transmit herpes unless he was having an outbreak.
- Doe later developed a primary genital herpes infection and sued Roe for negligent transmission of the disease (and also pleaded intentional misrepresentation).
- Roe obtained a nonsuit on the intentional misrepresentation claim, leaving negligence for trial.
- After a bench trial, the trial court found total damages of $200,000, reduced by 25% for Doe’s comparative fault, and entered judgment for Doe in the amount of $150,000.
- Roe appealed, challenging the existence of a duty and arguing that transmission without symptoms was not foreseeable in 1985.
Issues
- Whether a person who knowingly fails to disclose a sexually transmissible contagious disease to a sexual partner may avoid negligence liability for transmission by claiming he believed transmission was impossible while symptom-free.
- Whether, based on what was reasonably knowable in 1985, the risk of herpes transmission without visible symptoms was sufficiently foreseeable to support a duty of ordinary care and liability for negligent transmission.
Decision
- The California Court of Appeal (First Appellate District, Division Two) affirmed the judgment.
- The court held Roe owed Doe a duty of ordinary care and could not escape negligence liability by asserting a belief that he was noncontagious when he had no symptoms.
- The trial court’s damages award as reduced for comparative fault ($150,000) remained in place.
Legal Principles
- A person who knows he has a sexually transmissible contagious disease owes a duty of ordinary care to prospective sexual partners to avoid causing infection.
- Ordinary care in this setting includes warning a partner of the known infection so the partner can make an informed choice about sexual contact and risk.
- Foreseeability and duty are evaluated by an objective reasonable-person standard, not by the defendant’s claimed personal assumptions about how a disease is transmitted.
- A defendant’s failure to inform himself about a known contagious condition does not excuse non-disclosure or other unreasonable conduct that creates a risk of transmission.
- Comparative fault may reduce damages but does not eliminate the defendant’s duty to use reasonable care once the defendant knows of the infection.
Conclusion
In Doe v. Roe, the Court of Appeal affirmed negligence liability where Roe, despite knowing from prior outbreaks and diagnoses that he had genital herpes, had unprotected sex without warning Doe and then argued he thought he could not transmit the virus while symptom-free; the court held the duty of ordinary care required disclosure and reasonable precautions, and Roe’s belief did not bar liability.