Kohl v. Kohl – Negligent Transmission of Sexually Transmitted Disease
Gregg Hollander | October 26, 2014 | Personal Injury
The Florida Legislature, in recognizing that it’s wrong for someone with a sexually-transmitted disease (STD) to infect someone else (particularly when the carrier is aware of the disease), passed Florida Statute 384.24. This statute criminalizes the action of knowingly creating the potential of passing an STD to a sexual partner without first informing that person of the risk and obtaining consent.
Violation of this statute is a first-degree misdemeanor, punishable by up to one year in jail.
In addition to being a crime, transmission of an STD in Florida can also be the basis for a civil lawsuit. One must prove negligence by showing defendant owed a duty of care to plaintiff, defendant breached that duty and this breach was the proximate cause of harm or injury to the plaintiff.
In these cases, proving what a defendant knew of the disease and when it was known are the hardest parts of establishing a claim.
Our Cape Coral personal injury lawyers know a claim might be worthwhile, but it needs to be carefully considered. In the recent case of Kohl v. Kohl, Florida’s Fourth Circuit Court of Appeal weighed a case in which a woman attempted to sue her former husband for negligent transmission of the human papillomavirus (HPV). She did so in a two-count petition filed in circuit court – the first count seeking to dissolve her marriage and the second to extract damages for his alleged transmission of the STD.
The court severed the complaints, granting the dissolution of marriage and allowing the negligent transmission of STD claim to be heard separately.
She later filed a second amended complaint, alleging her former husband failed to warn her during their marriage that he had HPV. She did not learn she had contracted it until several years later, when during a routine pap smear she was informed she had contracted “high risk” HPV, which tends to result in the development of precancerous cells.
The wife asserted two bases to establish her husband’s constructive knowledge that he had the virus. First, she alleged he engaged in numerous extra-marital affairs, and also engaged in sexual acts with several prostitutes and escorts during the course of their marriage. Secondly, she claimed the woman he was married to before her had to undergo a hysterectomy as a result of HPV. She claimed that this constructive knowledge meant the former husband had a duty of reasonable care to either warn her of the risk or at least take other precautions to prevent the spread.
However, there was no specific allegation that the husband himself was diagnosed with the disease or that he was symptomatic.
Husband moved to dismiss, citing the 1991 decision by the 2nd DCA in Gabriel v. Tripp, which indicated the plaintiff had to meet the same standard set in Florida Statute 384.24. Husband argued that because the wife failed to prove his actual knowledge of the disease, she could not prove negligence.
The circuit court agreed, granting his motion to dismiss. Florida case law has sent precedent that a negligence lawsuit for STD transmission has to be predicated on a statutory violation.
Other states have held that plaintiffs in negligent STD transmission cases could show either the defendant’s actual or constructive knowledge of the disease. The same is true in Florida, but, the court decided, the rules are different for a disease like HPV, which is “uniquely prevalent and often not symptomatic.” That means proof of actual knowledge by the defendant is required.
Because the plaintiff here did not prove that point, dismissal of her claim was affirmed.
If you have been injured, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.
Kohl v. Kohl, Oct. 1, 2014, Florida’s Fourth Circuit Court of Appeal
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