Doe v. Roe

• Court: California Court of Appeals
• Writing for the Court: SMITH
• Citation: Doe v. Roe, 267 Cal.Rptr. 564, 218 Cal.App.3d 1538 (Cal. App. 1990)
• Decision Date: 23 March 1990
• Docket Number: No. A042776,A042776
• Parties: , 219 Cal.App.3d 1151A Jane DOE, Plaintiff and Respondent, v. Richard ROE, Defendant and Appellant.

Page 564

267 Cal.Rptr. 564

218 Cal.App.3d 1538, 219 Cal.App.3d 1151A

Jane DOE, Plaintiff and Respondent, v. Richard ROE, Defendant and Appellant.

No. A042776.

Court of Appeal, First District, Division 2, California.

March 23, 1990.

As Modified on Denial of Rehearing April 23, 1990.

Review Denied June 21, 1990.

Elliot L. Bien, Susan K. Alexander, Alan J. Lazarus, Bronson, Bronson & McKinnon, San Francisco, for defendant and appellant.

Tad S. Shapiro, Law Offices of Shapiro, Galvin & Shapiro, Santa Rosa, for plaintiff and respondent.

SMITH, Acting Presiding Justice.

The question presented on this appeal is: whether a person who knowingly fails to disclose to his sexual partner the fact that he has a sexually contagious disease may escape liability for negligence in transmitting that infection because he believed that he could not transmit it to her as long as he was symptom-free. We answer that question in the negative.

Defendant Richard Roe ¹ appeals from a judgment after a court trial finding him liable to plaintiff Jane Doe for $150,000 in damages based on negligent transmittal of the virus herpes simplex II (hereafter herpes) sometime in early 1985. Defendant does not contest the court's finding that he transmitted the disease to plaintiff or the amount of damages assessed. Rather he argues that he had no duty to the plaintiff as a matter of law because the risk of asymptomatic transmission was unforeseeable in 1985.

BACKGROUND

Viewing the record in the light most favorable to the prevailing party (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480) the evidence at trial discloses the following pertinent facts:

Defendant and plaintiff became acquainted in early 1985 while working together at a supermarket. Defendant asked her out several times and they engaged in frank and open discussions about sexual intercourse and other personal matters. Defendant told her that he had been involved in a longtime relationship with his live-in girlfriend and plaintiff told him she was involved with a boyfriend who was a merchant marine and away at sea. Soon after he asked her out, the subject of venereal disease came up. Plaintiff told defendant that she and her boyfriend were "clean," and that she would not want to put herself in a position where she could possibly contract a sexual disease. Defendant replied, "I don't blame you, I wouldn't want one either," but did not tell her he had previously contracted herpes.

In fact, defendant had suffered three prior outbreaks of herpes. In 1978, defendant noticed a lesion on his penis and consulted Dr. Ziegler, who told him he had herpes. Defendant remembers nothing more about the conversation. He assumed he had contracted the disease from the woman he was living with at the time and did nothing more about it. In 1979, five blisters appeared in the same area and defendant consulted Dr. Lowry, who confirmed the previous diagnosis. When he had a third outbreak in 1981, defendant did not see a doctor or do anything else about it. Each time the lesions healed by themselves.

Defendant and plaintiff began dating in early 1985 and a sexual relationship developed. Over a four-month period, they had sex once or twice a week. Defendant never disclosed the existence of his herpes condition, nor did he ever wear a condom during sexual relations. Up to that time, he made no attempt to educate himself about the disease, nor did he tell plaintiff about it because he didn't think he could give it to anybody.

In late May or early June 1985, plaintiff contracted genital herpes from defendant. Unlike defendant, who experienced only mild manifestations of the illness, plaintiff suffered greatly. She came down with 102-degree fever, swollen lymph glands, a sore throat and painful lesions on her genitalia which lasted three weeks. Since the onset of disease, she suffers outbreaks on the average of twice a month, each of which lasts about 10 days. She has undergone humiliation, severe physical discomfort and emotional distress. The disease has put a serious strain on her relationship with her boyfriend and sexual relations between them have drastically decreased both qualitatively and quantitatively. As a result of her contraction of the disease she also suffers an increased risk of cervical cancer and there is a significant chance that any child she bears will have to be delivered by Cesarean section.

PROCEDURAL HISTORY

Plaintiff sought recovery for damages as the result of her contraction of herpes on theories of fraud and negligence. At the close of plaintiff's case, defendant moved for nonsuit on the cause of action for intentionalmisrepresentation. The motion was unopposed and the court granted it.

After the conclusion of the trial, the court issued a memorandum decision in which it ruled in favor of plaintiff. The court found that there was a special relationship between the parties and that defendant was negligent in either not disclosing that he was infected with herpes or taking precautions such as the use of a condom, to prevent its transmission. The court found the total damages to plaintiff to be $200,000, but it reduced that figure by 25 percent due to contributory negligence on her part. ² No statement of decision under Code of Civil Procedure section 632 was requested or issued.

APPEAL

I Breach of Duty

In Kathleen K. v. Robert B. (1984) 150 Cal.App.3d 992, 198 Cal.Rptr. 273 (Kathleen K.), the court held that a person who unknowingly contracts a sexually transmitted disease such as herpes may maintain an action for damages against one who either negligently or through deceit infects her with the disease. Rejecting the claim that recognizing such a tort action would constitute an unwarranted intrusion into privacy matters, the court held that strong public policy reasons existed for imposing a duty on those who have sexually transmissible diseases to disclose such conditions to their partners. (Id., at p. 996-997, 198 Cal.Rptr. 273.) ³ The trial court relied on Kathleen K., and its ruling falls squarely within the holding of that case.

Defendant contends, however, that as a matter of law he was relieved of a duty to plaintiff to disclose his condition or take measures to prevent its spread because he believed that he could not transmit the disease unless he had an active manifestation of the infection. Defendant cites several medical articles and pamphlets, none of which were introduced before the trial court, in an attempt to show that as of 1985 the existence of asymptomatic shedding (transmission without lesions) was not well known, and it was believed even among doctors that herpes could not be transmitted as long as the patient did not have visible lesions. Since the risk of harm was unforeseeable, defendant argues, there can be no duty of care. How, he asks rhetorically, can he be faulted for not knowing more than his own doctors?

In determining whether a duty should be imposed, the courts are guided by the basic principle expressed in Civil Code section 1714 that everyone is responsible for injury occasioned to another by his own want of ordinary care or skill. (Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.) Departures from this rule are warranted only by balancing a number of policy considerations, including the foreseeability of the harm suffered, the degree of certainty the plaintiff suffered injury, the closeness of the connection between defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct and the consequences to the community of imposing a duty to exercise care. (Ibid.) It is unnecessary to discuss each of these factors in detail. With the exception of foreseeability, defendant does not dispute that all of them substantially weigh in favor of the imposition of a duty of care on his part to warn those with whom he is intimate of the existence of his infectious condition or at least take precautions against spreading it.

Since the court's judgment implied a finding that defendant exposed plaintiff to a foreseeable risk, we must view the record in the light most favorable to the judgment to determine whether a reasonable trier of fact could have found the risk of harm foreseeable. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) "Ordinarily foreseeability is a question of fact.... It may be decided as a question of law only if 'under the undisputed facts there is no room for a reasonable difference of opinion.' [Citation.]" (Bigbee v. Pacific Tel. & Tel. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.) " 'The degree of foreseeability necessary to warrant the finding of a duty will ... vary from case to case. For example, in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.' [Citation.] Thus, foreseeability is a somewhat flexible concept." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125, 211 Cal.Rptr. 356, 695 P.2d 653, emphasis added.) In the present case, it is beyond question that our state's policy of preventing the spread of venereal disease is great and that the burden of warning a prospective sex partner is small. Thus, only a slight degree of foreseeability was needed to warrant the imposition of a duty of due care in the present case.

The evidence shows defendant knew he had herpes and that it could be transmitted by sexual contact. Although he had several outbreaks of the virus prior to 1985, defendant did absolutely nothing to find out about its contagiousness or what steps could be taken to prevent his giving it to a prospective partner. Defendant also testified that his...