Kohl v. Kohl

• Citation: 149 So.3d 127
• Decision Date: 01 October 2014
• Docket Number: No. 4D13–1194.,4D13–1194.
• Parties: Yulia Forest KOHL, Appellant, v. Norman Dean KOHL, Jr., Appellee.
• Court: Florida District Court of Appeals

149 So.3d 127

Yulia Forest KOHL, Appellant

v.Norman Dean KOHL, Jr., Appellee.

No. 4D13–1194.

District Court of Appeal of Florida, Fourth District.

Oct. 1, 2014.

James P. Curry, Curry, PL, Jupiter, for appellant.

Bryan J. Yarnell of Gilbert Yarnell, Palm Beach Gardens, for appellee.

Opinion

GROSS, J.

The circuit court dismissed appellant Yulia Forest Kohl's claim of negligent transmission of a sexually transmissible disease with prejudice for her failure to track the language of section 384.24, Florida Statutes (2013). An issue on appeal is one of first impression for this state: whether a cause of action for negligent transmission of a sexually transmissible disease may be asserted upon common law negligence principles. Although we hold that such a claim may sound in common law negligence, we nonetheless affirm the dismissal of the complaint; the pleading failed to demonstrate even the defendant's constructive knowledge that he carried a sexually transmissible disease, much less the actual knowledge that would be required to state a claim for transmitting the specific disease at issue in this case.

The Pleadings in the Circuit Court

On an appeal from an order granting a motion to dismiss, we “treat the factual allegations of the complaint as true and ... consider those allegations in the light most favorable to the plaintiff[ ].” Hollywood Lakes Section Civic Ass'n v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996) (citing Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030 (Fla. 4th DCA 1994) ).

In January 2009, the former wife filed a two-count petition in the circuit court, seeking (I) to dissolve her marriage with appellee Norman Kohl (“the former husband”) and (II) to extract damages from him “for assault by way of the transmission of the” human papillomavirus (“HPV”). Upon the former husband's motion, the trial court severed Count II, permitting entry of an amended final judgment of dissolution of marriage.

By June 2012, the former wife's second amended complaint attempted to state a cause of action for negligent transmission of a sexually transmissible disease, specifically HPV. This claim was based upon the former husband's failure to warn the former wife during their marriage that he had HPV. The disease manifested in June 2008, when the former wife learned from a routine pap smear that she had contracted “high risk” HPV, resulting in the development of “precancerous cell changes.”

The complaint asserted two bases to establish the former husband's constructive knowledge that he had the virus. First, the pleading alleged that the former husband “engaged in extra-marital affairs and hired multiple prostitutes and escorts during the course of their marriage.” Second, the complaint asserted that the former husband “knew or should have known he was exposed to HPV as his ex-wife [ (prior to the former wife) ] had undergone a hysterectomy.” There were no allegations that the former husband had been diagnosed with HPV or that he had experienced symptoms of the disease.

Given such characterization of the former husband's knowledge that he carried HPV, the former wife alleged that her former husband “had a duty of reasonable care ... either to warn her or take other precautions to prevent the spread of the [HPV] with which [former husband] was infected.” By failing to issue such a warning, the pleading alleged that the former husband breached this duty and, in turn, proximately caused the former wife to contract HPV, resulting in damages for “past and future pain and suffering, past and future medical expenses, past and future mental pain and suffering, and past and future loss of full function of mind and body.”

Procedural Posture

The former husband moved to dismiss the negligence count, asserting pursuant to the Second District's decision in Gabriel v. Tripp, 576 So.2d 404 (Fla. 2d DCA 1991), that a civil cause of action for negligent transmission of a sexually transmissible disease is cognizable only where the plaintiff tracks the language of section 384.24, Florida Statutes (2013). To satisfy the statute, the former husband contended that the former wife was required to allege (1) that he had actual knowledge he “was infected with one of the sexually transmissible diseases enumerated in section 384.24 ” and (2) that he “had been informed that said disease could be communicated through sexual intercourse.” The former husband argued the complaint alleged “no basis for asserting [he] ‘knew’ he had HPV.”

The circuit court dismissed the negligence count with prejudice, due primarily to the former wife's failure to “track the allegations required for a civil action predicated upon § 384.24 Florida Statutes.” Classifying the matter as an “attempt to create a new cause of action,” the trial court explained that “Florida courts have required plaintiffs to strictly track th[e] statute.” Thus, the former wife failed to state a cause of action in negligence, since she did not assert “actual knowledge of infection on the part of the tortfeasor or actual knowledge that the infection could be transmitted through sexual intercourse.”

Statutory Violations and Negligence

“Because the issue of whether a complaint is sufficient to state a cause of action is a question of law,” our review is de novo. James v. Crews, 132 So.3d 896, 898 (Fla. 1st DCA 2014) (citations omitted).

As developed by the common law, a cause of action for negligence arises where one's “failure to use that degree of care which a reasonably careful person would use under like circumstances” causes injury. London v. Atl. Mut. Ins. Co., 689 So.2d 424, 425 (Fla. 4th DCA 1997). Common law negligence is open-ended and divorced from intent, Booth v. Mary Carter Paint Co., 182 So.2d 292, 299 (Fla. 2d DCA 1966), “allow[ing] the plaintiff to claim that any given conduct was negligent.” Dan B. Dobbs, The Law of

Torts

§ 110, at 257 (2000). Its focus is on the relationship between the actor and person in fact injured. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 101 (1928).

While negligence has its roots in common law, legislative enactments play an important role in shaping standards of conduct. W. Page Keeton et al., Handbook on the Law of Torts § 35 (3d ed.1964). Proof that a defendant violated a statute—including a criminal statute—can be categorized in a negligence case in one of three ways, depending on the statute's purpose:

(1) violation of a strict liability statute designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se; (2) violation of a statute establishing a duty to take precautions to protect a particular class of persons from a particular type of injury, also constituting negligence per se; (3) violation of any other kind of statute, constituting mere prima facie evidence of negligence.

Chevron U.S.A., Inc. v. Forbes, 783 So.2d 1215, 1219 (Fla. 4th DCA 2001) (quoting Grand Union Co. v. Rocker, 454 So.2d 14, 15 (Fla. 3d DCA 1984) ).

Focusing on the final category, Florida courts permit proof of a statutory violation to serve as prima facie evidence of negligence because “the standard of conduct or care embraced within such [a] legislative ... measure [ ] represent[s] a standard of at least reasonable care which should be adhered to in the performance of any given activity.' ” Dusine v. Golden Shores Convalescent Ctr., Inc., 249 So.2d 40, 41–42 (Fla. 2d DCA 1971) (quoting Alford v. Meyer, 201 So.2d 489, 491 (Fla. 1st DCA 1967) ); see also Fla. Std. Jury Instr. (Civ.) 401.9. Such statutory violation evidence thus will not overhaul the negligence cause of action, as “the claimant still needs to prove all elements of actionable negligence.” Tierney v. Black Bros. Co., 852 F.Supp. 994, 1000 (M.D.Fla.1994) (citing deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198, 201 (Fla.1973) ; Hurd v. Munford, Inc., 378 So.2d 86, 89 (Fla. 1st DCA 1979) ).

Negligent Transmission of a Sexually Transmissible Disease

Nationwide, courts “have long imposed liability on individuals who have harmed others by transmitting communicable diseases,” paving the way for recognition of “a cause of action for the negligent transmission of sexually transmitted diseases.” John B. v. Superior Court, 38 Cal.4th 1177, 45 Cal.Rptr.3d 316, 137 P.3d 153, 159 (2006). While Florida courts have embraced this national consensus,¹ see Hogan v. Tavzel, 660 So.2d 350, 351 n. 1 (Fla. 5th DCA 1995) (“Lawsuits on the negligent transmission of genital herpes have been recognized in this state.” (citation omitted)); Gabriel v. Tripp, 576 So.2d 404, 405 (Fla. 2d DCA 1991), Florida case law has suggested that such a suit must be predicated on a statutory violation.

This limitation on a common law cause of action derives from the application of section 384.24, Florida Statutes (2013), a criminal statute that makes it a first-degree misdemeanor to knowingly transmit certain sexually transmissible diseases.

See §§ 384.34, 775.082(4)(a), 775.083(1)(d), Fla. Stat. (2013). The statute provides in relevant part:

It is unlawful for any person who has chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or syphilis, when such person knows he or she is infected with one or more of these diseases and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

§ 384.24(1), Fla. Stat. (2013).

In Gabriel, the Second District ostensibly made tracking section 384.24 a necessary component to a claim for negligent transmission of a sexually transmissible disease. There, the trial court dismissed a negligence suit in which the plaintiff...