She’s/He’s Got The Jack, Do You Got a Case?

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

A guy went on Tinder, picked up a woman, and got herpes from her. Yeah? Why is that news? Well, the guy sued her for giving her the as-of-today incurable disease. (source) The woman knew that she had herpes, but she lied to the guy about her condition. She claims that she only thought it would be contagious during an outbreak. He is now suing her for giving him the virus.

Does he have a case? Probably.

People do bad things to one another with their genitalia. In one case I reviewed, a wife accused a husband of intentionally infecting her with an STD. Adam M. v. Christina B., 2013 Alas. LEXIS 73 (Alaska June 5, 2013). This guy went around and tried to give HIV to thousands of people — on purpose. But, lets set aside the extreme example of the Lord Jeffrey Amherst school of sexually transmitted disease transmission. That’s easy. You give someone a disease, with the specific intent of giving them the disease, you’re probably going to jail, and you’re definitely going to be subject to tort liability.

If I were to ever put this issue on a torts exam, (and if I ever teach torts, I probably would) I wouldn’t use the Tinder story. I’d probably use this AC/DC story: The AC/DC song, “The Jack” is a very thinly veiled story about a venereal disease carrier. Bon Scott had Gonorrhea, and he knew it, but he had unprotected sex with a woman just the same. Well then, she had sex with Phil Rudd (AC/DC’s drummer), and she unknowingly passed it along to him. But, given the rapid succession of partners, she thought that she caught it from Rudd, so she sent him her $35 doctor’s visit bill. At the next show, Scott then brought her on stage and told her that it was he who actually owed her the $35. (source) The story doesn’t continue to tell us if Phil Rudd then got it from the unnamed woman (lets call her “Jackeline”), but for the sake of lawsplaining, lets presume he did.

Who owes whom?

Well, Bon Scott is right, he is likely liable to Jackeline. He had a venereal disease, yet he had unprotected sex with her, apparently without warning her so that she could either take precautions or assume the risk. Some might even call it “rape” if Scott had sex with Jackeline under false pretenses, but I’m not buying or selling that theory. Nevertheless, “you broke it, you buy it” works for The Jack too.

But, what about Phil Rudd? Jackeline gave it to him, right? Is she liable? Probably not. But what about Scott being liable to Rudd?

Normally, to be liable for transmitting an STD to someone else, you have to have actual or constructive knowledge that you’re infected. Rossiter v. Evans, 2009 Iowa App. LEXIS 1720 (Iowa Ct. App. Dec. 30, 2009); McPherson v. McPherson, 712 A.2d 1043, 1046 (Me. 1998); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989).

Ok, but what about this constructive knowledge? What does that mean? “Actual knowledge” means you “actually know.” “Constructive knowledge” means you know, or you should have known.

You should have known you have The Jack? The Supreme Court of Vermont addressed this in Endres v. Endres, 968 A.2d 336 (Vt. 2008). “A plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection.” Therefore, constructive knowledge is enough. In California, there was a rejected argument that a defendant must have actual knowledge of the STD. John B. v. Superior Court, 38 Cal. 4th 1177, 45 Cal. Rptr. 3d 316, 137 P.3d 153 (2006) The court ruled “We are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”

But, how far does this “constructive knowledge” go? Should Jackeline be liable to Rudd because she should have known she would catch something? I’d imagine that if someone is promiscuous enough that they’re not even sure who gave them an STD, they are on some kind of constructive notice that they picked something up somewhere along the way, no?

No.

In Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993). A woman claimed that she got HIV from Magic Johnson. She claimed that he should have known he had it, and should have disclosed his sexual history to her prior to having sex with her. After all, his list is legendary. Nevertheless, the court did not find that such a duty existed.

I find that imposition of a duty to disclose a “high risk” lifestyle prior to sexual conduct, which theoretically puts a sex partner “at risk,” would open a door better left closed. Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993)

McPherson v. McPherson, 712 A.2d 1043 (Me. 1998) dealt with a less famous party, but similar issues. In that case, a married defendant had an extra-marital affair, contracted HPV, and then gave it to his wife. Since Mr. McPherson never tested positive for HPV and never experienced any symptoms of HPV, he was on neither actual nor constructive notice of his infection. Thus, he was not liable to his ex-wife.

And more recently, a Florida Appellate court tossed out an argument that a high-risk fucker should be liable to the fuckee for any transmission of an STD. Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014). In that case, like McPherson, Mr. Kohl was accused by his wife of sleeping around, but this time with hookers and escorts. Id at 131. This still was not enough constructive knowledge.

Therefore, unless something changes, “constructive knowledge” in this context means “constructive knowledge that you have a disease” not constructive knowledge that you’ve done things that someone would reasonably extrapolate makes you high-risk.

So Scott owes Jackeline, for sure. Jackeline does not owe Rudd. But, what about Scott owing Rudd, if he got an Scott’s Jack from Jackeline? I have never seen a case where the plaintiff is seeking compensation for an STD that he contracted from a girl, who didn’t know she had it, from the guy that gave it to her. But, under normal tort principles, such a case might be successful. If you bang someone, and you know you have a communicable disease, and you give it to them, then you should be liable for the reasonably foreseeable results of that bangage, right?

So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that’s a reasonably foreseeable occurrence.

This post originally appeared on Popehat. View it here.

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