Mussivand v. David

Supreme Court of Ohio · 1989 · Torts

Tortsproximate causesexually transmitted diseasedutythird partyforeseeabilitydutythird-party spouse

Facts

The complaint alleged that the appellant infected appellee with a venereal disease through appellant's sexual relations with appellee's wife. Appellee was not appellant's sexual partner and had no direct sexual contact with appellant. The opinion indicates appellant allegedly engaged in sexual relations with a married woman and did not inform her of his venereal disease. Appellee also alleged fraud based on appellant's response when appellee asked whether appellant had had an affair with appellee's wife.

Issue

Does a person infected with a venereal disease owe a duty not only to a sexual partner, but also to that partner's spouse when transmission to the spouse is foreseeable? Relatedly, does R.C. 3701.81(A) create negligence per se, and did appellee state viable claims for negligence and fraud?

Rule

A person who knows, or should know, that he or she is infected with a venereal disease has a duty to abstain from sexual conduct or, at minimum, warn those persons with whom he or she expects to have sexual relations of the condition. Liability to a third-party spouse turns on foreseeability: if, under all the circumstances, injury to the spouse was reasonably foreseeable, the duty extends to that spouse. R.C. 3701.81(A) does not establish negligence per se because it requires only 'reasonable measures' and thus states a general standard of conduct rather than a specific act. A spouse-paramour's later conduct breaks causation only if that spouse knew or should have known of the exposure or disease and thus became a conscious and responsible agency able to eliminate the hazard.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Nolan Pierce had been told by his physician that he likely carried a sexually transmissible infection and should avoid sexual contact until further testing. Instead, Nolan had sex with Ava Rowan without mentioning the warning, and Ava later developed the infection. Ava sues Nolan for negligence.

Which is the strongest argument that Ava has stated a negligence claim?

Explanation. The majority held that a person who knows or should know that he or she is infected with a venereal disease has a duty to abstain from sexual conduct or, at minimum, warn those with whom he or she expects to have sexual relations. Intent to infect is not required, and the duty is not limited to spouses.