## Facts

- Tofigh Mussivand alleged that Dr. George David had a sexual relationship with Mussivand’s wife while David was infected with a venereal disease.
- Mussivand alleged David failed to disclose his infection risk to the wife, that the wife contracted the disease from David, and that she then transmitted it to Mussivand through marital sexual relations.
- Mussivand asserted negligence based on David’s failure to abstain from sexual conduct or warn of the infection risk.
- Mussivand also alleged David misrepresented that he had not had sexual relations with the wife, and that Mussivand relied on this statement in choosing to have sex with his wife.
- Additional claims pleaded against David included slander and threats of harm.
- In an amended pleading, Mussivand added his wife as a defendant, alleging she was negligent in failing to inform him of her extramarital sexual relations and the risk of disease transmission.
- The case was evaluated at the motion-to-dismiss stage, requiring the pleaded factual allegations to be accepted as true.

## Issues

1. Whether a person who knows or should know he is infected with a venereal disease owes a duty of care to the foreseeable spouse of his sexual partner for injuries caused by transmission through the partner.
2. Whether Ohio’s “heart balm” statute, R.C. 2305.29, bars a negligence action seeking damages for physical injury arising from disease transmission connected to an extramarital affair.
3. Whether the wife’s intervening conduct in engaging in marital sexual relations without warning constitutes a superseding cause that defeats liability as a matter of law at the pleading stage.

## Decision

- The Supreme Court of Ohio affirmed the court of appeals and reversed the trial court’s dismissal of the negligence claim against David.
- The court held that a person who knows or should know he has a venereal disease has a duty to abstain from sexual conduct or, at minimum, to warn expected sexual partners of the condition.
- The court held that a spouse is a foreseeable sexual partner; thus, a person engaging in sexual contact with a married person while infected may be liable to the third-party spouse for resulting transmission.
- The court limited the third-party spouse liability period to the time “until the initially infected spouse knows or should have known” of the infection.
- The court rejected the argument that R.C. 2305.29 barred the negligence claim, characterizing it as a personal-injury action for physical harm rather than a prohibited action for injury to marital relations.
- The court declined to resolve proximate-cause and superseding-cause questions against the plaintiff on a motion to dismiss and remanded for further proceedings.

## Legal Principles

- Negligence duty may arise from foreseeable risk of physical harm and relevant public-policy considerations, even absent direct privity between plaintiff and defendant.
- A person who knows or should know of a venereal disease must abstain from sexual conduct or warn those with whom he expects to have sexual relations.
- The spouse of a married sexual partner is a foreseeable person at risk of infection; duty can extend to that third party through the obligation to warn the married partner.
- For third-party spouse claims, liability may be cut off once the initially infected spouse knows or should know of the infection, because subsequent transmission may then depend on the infected spouse’s informed conduct.
- Statutes abolishing alienation of affections and related “heart balm” causes of action do not bar negligence claims seeking recovery for physical injuries caused by disease transmission.
- At the motion-to-dismiss stage, a court assesses whether the pleaded facts could support relief; contested duty and causation issues generally are not resolved as matters of law on the pleadings.

## Conclusion

The court held that an STD carrier’s duty to abstain or warn extends beyond immediate sexual partners to foreseeable third-party spouses, that physical-injury negligence claims of this type are not barred by Ohio’s heart-balm statute, and that causation defenses based on intervening conduct ordinarily require factual development rather than dismissal on the pleadings.


Mussivand v. David, 45 Ohio St. 3d 314 (Ohio 1989)