Liability for Failure to Disclose Sexual History

"What duty  does an HIV-positive individual have to avoid transmitting the virus? What level  of awareness should be required before a court imposes a duty of care on an HIVpositive  individual to avoid transmission of the virus? What responsibility does the victim have to protect himself or herself against possible infection with the virus?"  Those are questions raised in a recent case before the California Supreme Court.

Why did Bridget sue her husband? : "Bridget [the wife] allege[d] that John [her husband] became infected with HIV first, as a result of  engaging in unprotected sex with multiple men before and during their marriage,  and that he then knowingly or negligently transmitted the virus to her. John, who  now has full-blown AIDS, allege[d] in his answer that Bridget infected him and  offers as proof a negative HIV test conducted in connection with his application for life insurance on August 17, 2000, six weeks before Bridget discovered she  was infected with HIV."  Bridget sued John for intentional infliction of emotional distress, negligent infliction of emotional distress,  fraud and negligence.  John not only alleged that Bridget gave him HIV but also alleged that fault should be assessed against her because she did not insist that he wear a condom.

The case went up a discovery issues:  what scope of discovery should be permitted the alleged negative HIV test results six weeks before Bridget’s diagnosis?  And what about the right to privacy? Of course, the scope of discovery is in some ways depend on the viability of the various causes of action and that is where the Court got into substantive tort law.

There is no doubt that you cannot intentionally give someone a sexually transmitted disease. Is there potential liability for negligent transmission of a sexual disease that you don’t know you have?  The Court: "the tort of negligent transmission of HIV does  not depend solely on actual knowledge of HIV infection and would extend at least  to those situations where the actor, under the totality of the circumstances, has  reason to know of the infection. Under the reason-to-know standard, ‘the actor  has information from which a person of reasonable intelligence or of the superior  intelligence of the actor would infer that the fact in question exists, or that such  person would govern his conduct upon the assumption that such fact exists.’ (Rest.2d Torts, § 12, subd. (1).)"

The Court then went on to limit its holding: "[O]ur conclusion that a claim of negligent transmission of HIV lies  against those who know or at least have reason to know of the disease must be  understood in the context of the allegations in this case, which involves a couple  who were engaged and subsequently married; a defendant who falsely represented  himself as monogamous and disease-free and insisted the couple stop using  condoms; and a plaintiff who agreed to stop using condoms in reliance on those  false representations. We need not consider the existence or scope of a duty for  persons whose relationship does not extend beyond the sexual encounter itself,  whose relationship does not contemplate sexual exclusivity, who have not  represented themselves as disease-free, or who have not insisted on having sex  without condoms."

The Court then addressed the discovery issues and held, inter alia, Bridget could not do discovery concerning John’s sexual history before a date six months before the date of the insurance test (it may take six months after exposure to find HIV during a blood test) unless she could prove that the test was unreliable or inaccurate or unless she could develop scientific proof that the six month period was too short.

There were  three seperate opinions in dissent in the case.  One dissenter would not have reached the duty issue and would have granted broader discovery.  The other two dissenters disagreed with the majority’s conclusion on the duty issue.

This is a fascinating case and presents a classic debate on a interesting "duty" question.  Read the opinion  in John B. v. The Superior Court of Los Angeles County,  No. 128248 (Cal. July 3, 2006) here.