Mussivand v. David

• Decision Date: 20 September 1989
• Docket Number: No. 88-1390,88-1390
• Citation: 45 Ohio St.3d 314,544 N.E.2d 265
• Parties: , 58 USLW 2260 MUSSIVAND, Appellee, v. DAVID, Appellant, et al.
• Court: Ohio Supreme Court

Page 314

45 Ohio St.3d 314

544 N.E.2d 265, 58 USLW 2260

MUSSIVAND, Appellee, v. DAVID, Appellant, et al.

No. 88-1390.

Supreme Court of Ohio.

Submitted May 31, 1989.

Decided Sept. 20, 1989.

Syllabus by the Court

1. A person who knows, or should know, that he or she is infected with a venereal disease has the duty to abstain from sexual conduct or, at a minimum, to warn those persons with whom he or she expects to have sexual relations of his or her condition.

2. A spouse is a foreseeable sexual partner and a person who has a venereal disease who fails to inform a married person with whom he or she is engaging in sexual contact of his or her condition is liable to the third-party spouse until the initially infected spouse knows or should have known he or she is infected with a venereal disease.

On May 22, 1987, Tofigh Mussivand, plaintiff-appellee, filed a complaint against George David, M.D., defendant-appellant, in which he alleged four causes of action. The complaint stems from an alleged sexual liaison appellant had with appellee's wife. It appears that appellant was infected with a venereal disease at the time he engaged in sexual relations with appellee's wife. Appellee contends that his wife, who allegedly contracted a venereal disease from appellant, has in turn infected appellee with the disease.

In his first cause of action, appellee alleged that appellant was negligent in failing to notify appellee's wife that he was at risk in passing the disease to her. The second cause of action stated that appellant falsely represented to appellee that appellant and appellee's wife had not had sexual relations. Appellee alleges that relying on such misrepresentation, he engaged in sexual relations with his wife. Appellee's third cause of action was for slander. The fourth cause of action alleged that appellant had threatened appellee with harm.

Appellee filed an amended complaint on June 9, 1987, wherein he added his wife as a defendant. Appellee alleged that his wife was negligent in failing to notify him that she had had sexual relations with appellant and, therefore, was at risk in passing a sexually transmissible disease to him.

Appellant moved to dismiss appellee's complaint for failing to state a claim against appellant upon which relief could be granted. Appellant argued, inter alia, that he owed no duty to appellee; that the action was barred by R.C. 2305.29; that appellee's injuries were not proximately caused by appellant's acts; and that appellee's wife was the proximate cause of appellee's injuries.

On September 30, 1987, the court of common pleas granted appellant's motion to dismiss all four causes of action against appellant. The court also dismissed the complaint as to appellee's wife because appellee had not filed a motion for default judgment upon her failure to timely answer the amended complaint.

On October 14, 1987, the court issued an order that if a motion for default was not filed within fourteen days, appellee's complaint would be dismissed without prejudice for lack of prosecution. Apparently because of the confusion as to whether appellee's wife had been dismissed in the September 30, 1987 order, appellee filed a motion to vacate if the September 30, 1987 order did indeed dismiss both appellant and appellee's wife, and in the alternative, a motion to file a second amended complaint if appellee's wife had not been dismissed.

A motion for default judgment was filed by appellee on October 27, 1987. ¹ On October 28, 1987, appellee filed a notice of appeal from the September 30, 1987 order. Upon remand, the trial court, on January 20, 1988, issued an order vacating its prior October 14, 1987 entry and denied appellee's motion to vacate. On appeal, appellee contended that the trial court erred in granting appellant's motion to dismiss, in dismissing the complaint against appellee's wife, and in denying his motion to vacate. The court of appeals affirmed the trial court's dismissal of the third and fourth causes of action. However, the appellate court found that dismissal as to the negligence cause of action was improper because appellee had alleged the essential elements of negligence. The court specifically found that it could not say that appellee would not be able to prove any set of facts establishing that appellant owed a duty to appellee. The appellate court also reversed the dismissal of appellee's second cause of action alleging misrepresentation. Furthermore, the appellate court held that dismissal of the complaint against appellee's wife was improper because the trial court had failed to give notice to appellee of its dismissal for failure to prosecute.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Scanlon & Gearinger Co., L.P.A., Paul F. Meyerhoefer and Robert A. Royer, Akron, for appellee.

Mark B. Cohn and Joseph E. Viny, Cleveland, for appellant.

ALICE ROBIE RESNICK, Justice.

This case comes to us on a dismissal of a complaint for failure to state a cause of action. The complaint basically states that appellee contracted a venereal disease due to the acts of the appellant. Therefore we do not know whether the venereal disease was gonorrhea, syphilis, genital herpes, venereal warts or some other sexually transmitted disease. Hence a brief discussion of sexually transmitted diseases is necessary.

A "venereal disease" is defined as "a contagious disease, most commonly acquired in sexual intercourse or other genital contact; the venereal diseases include syphilis, gonorrhea, chancroid granuloma inguinale, lymphogranuloma venereum, genital herpesvirus infection, and balanitis gangraenosa." Dorland's Illustrated Medical Dictionary (26 Ed.1985) 394. Sexually transmitted diseases "such as non specific urethritis, trichmoniasis, chlamydial infections, genital candidiasis, genital and anorectal herpes and warts * * * probably are more prevalent than the 5 historically defined venereal diseases--syphilis, gonorrhea, chancroid, lymphogranuloma venereum, and granuloma inguinale. However, because the former group is not consistently reported, incidence figures are not available. * * * " The Merck Manual of Diagnosis and Therapy (15 Ed.1987) 232. ²

Diagnosis and treatment vary with the venereal disease involved. Gonorhea, for example, generally spreads by sexual contact, as does syphilis. Both of these venereal diseases generally may be treated with medication, such as penicillin. ³ Genital warts (condylomata acuminata) also are usually transmitted sexually. However, with this disease, no treatment is completely satisfactory. Over the past ten years, genital wart infections have increased "at twice the rate of genital herpes and are medically important, especially for future cancers." Merck Manual, supra, at 250. ⁴

Genital herpes or herpes simplex virus type 2 (HSV 2) also is spread through sexual intercourse. ⁵ There are two types of herpes simplex virus: herpes simplex virus type 1, which is the causative agent of oral infections, or conditions "above the waist"; and herpes simplex virus type 2, which is the causative agent of genital infections, or symptoms "below the waist." ⁶ As with genital warts the number of persons infected with herpes simplex virus type 2 is growing at an alarming rate. ⁷ There is no known cure for this disease. ⁸

It long has been held that one who has a contagious disease must take the necessary steps to prevent the spread of the disease. This standard of care has been imposed by the courts in cases concerning the spread of communicable diseases such as tuberculosis, see Earle v. Kuklo (1953), 26 N.J.Super. 471, 98 A.2d 107; smallpox, see Jones v. Stanko (1928), 118 Ohio St. 147, 160 N.E. 456; scarlet fever, see Skillings v. Allen (1919), 143 Minn. 323, 173 N.W. 663; and valley fever, see Crim v. International Harvester Co. (C.A. 5, 1981), 646 F.2d 161. " 'The general principle is well established that a person who negligently exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor. * * * The degree of diligence required to prevent exposing another to a contagious or infectious disease depends upon the character of the disease and the danger of communicating it to others. In order to show negligence in exposing another to a contagious or infectious disease, it must be proved that the defendant knew of the presence of the disease.' " Earle, supra, 26 N.J.Super. at 475, 98 A.2d at 109, quoting from 25 American Jurisprudence (1940) 318, Health, Section 45.

A similar standard of care exists for preventing the spread of a venereal disease. In Duke v. Housen (Wyo.1979), 589 P.2d 334, the plaintiff alleged that her former paramour was grossly negligent when he infected her with gonorrhea. Although her action was barred by the statute of limitations, the court held that "[o]ne who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actions. * * * " (Citations omitted.) Id. at 340. See, also, Crowell v. Crowell (1920), 180 N.C. 516, 105 S.E. 206 (plaintiff alleged defendant wrongfully and recklessly infected her with a venereal disease), and De Vall v. Strunk (Tex.Civ.App.1936), 96 S.W.2d 245 (plaintiff alleged defendant infected her with crab lice).

Recently several jurisdictions have allowed tort actions for negligent, fraudulent or intentional transmission of genital herpes where the person infected with genital herpes fails to disclose to his or her sexual partner that he or she is infected with such a disease. See B.N. v. K.K. (1988), 312 Md. 135, 538 A.2d 1175; Maharam v. Maharam (1986), 123 A.D.2d 165, 510 N.Y.S.2d 104; S.A.V. v. K.G.V. (Mo.1986), 708 S.W.2d 651; Long v. Adams (1985), 175 Ga.App. 538, 333 S.E.2d 852, certiorari denied (Ga.1985); Kathleen K. v. Robert B 1984), 150 Cal.App.3d 992, 198 Cal.Rptr. 273; Berner...