Facts
- A former wife alleged she contracted “high risk” HPV during marriage, discovered in June 2008 after a routine Pap smear showed precancerous cell changes.
- In 2009, she filed a petition for dissolution and a separate claim seeking damages for the husband’s alleged transmission of HPV; the tort claim was severed from the dissolution proceeding.
- By a second amended complaint, she pursued a claim for negligent transmission of HPV based on the former husband’s alleged failure to warn that he carried HPV.
- To plead the husband’s knowledge, she alleged he engaged in extramarital affairs and hired prostitutes and escorts during the marriage.
- She also alleged he knew or should have known he was exposed to HPV because a prior wife had undergone a hysterectomy.
- The complaint did not allege the former husband had been diagnosed with HPV or experienced symptoms.
- The trial court dismissed the negligence claim with prejudice; the former wife appealed.
Issues
- Whether Florida recognizes a common-law negligence cause of action for negligent transmission of a sexually transmissible disease independent of section 384.24, Florida Statutes.
- If such a claim exists, whether a plaintiff must allege the defendant’s actual knowledge of HPV infection (as opposed to constructive knowledge), and whether the pleadings were sufficient under that standard.
Decision
- The appellate court affirmed the dismissal with prejudice.
- The court held Florida common law permits a negligence claim for transmission of a sexually transmissible disease and such claims are not limited to section 384.24.
- For negligent transmission of HPV, the court held liability may be based only on the defendant’s actual knowledge of infection, not constructive knowledge.
- The allegations of high-risk sexual conduct and an ex-spouse’s hysterectomy did not support a plausible inference that the former husband actually knew he had HPV.
- With multiple prior amendments and a substantive failure to plead the required knowledge element, dismissal with prejudice was upheld.
- One judge concurred in result only.
Legal Principles
- Common-law negligence requires a failure to use the care a reasonably careful person would use under like circumstances, causing injury.
- A criminal statute addressing STD transmission does not necessarily displace common-law negligence; statutory violations may constitute negligence per se or prima facie evidence of negligence depending on the statute’s character and purpose.
- For negligent transmission of HPV, the plaintiff must plead facts supporting the defendant’s actual knowledge of infection; allegations implying mere exposure risk or generalized risky behavior are insufficient.
Conclusion
The court recognized a common-law negligence claim for sexually transmissible disease transmission in Florida but affirmed dismissal because negligent transmission of HPV requires pleading the defendant’s actual knowledge of infection, which was not supported by the complaint’s allegations.