Doe v. Roe
218 Cal.App.3d 1538, 267 Cal. Rptr. 564 (1990)
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Rule of Law:
A person who knows they have a sexually transmissible disease has a duty to disclose that fact or take precautions to prevent its transmission to a sexual partner, and this duty is not negated by a subjective, unverified belief that they are not contagious while asymptomatic.
Facts:
- In 1978, Richard Roe was diagnosed with herpes and experienced subsequent outbreaks in 1979 and 1981.
- In early 1985, Roe became acquainted with Jane Doe and they discussed personal matters, including STDs.
- Doe told Roe she was 'clean' and would not want to risk contracting a sexual disease.
- Roe replied that he would not want one either but did not disclose his own herpes diagnosis.
- Roe and Doe began a sexual relationship that lasted four months, during which they had intercourse regularly without using condoms.
- Roe knew he had herpes but did not disclose it because he believed he could not transmit the disease unless he had active, visible lesions.
- In May or June of 1985, Doe contracted genital herpes from Roe, resulting in severe physical and emotional suffering.
Procedural Posture:
- Jane Doe sued Richard Roe in California trial court, asserting causes of action for fraud and negligence.
- At the close of Doe's case, the trial court granted Roe's motion for nonsuit on the fraud claim.
- After a court trial, the court found Roe liable for negligence and awarded Doe $200,000 in damages, reduced by 25% for her contributory negligence.
- Richard Roe, as appellant, appealed the judgment to the California Court of Appeal. Jane Doe is the appellee.
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Issue:
Does a defendant's subjective belief that he could not transmit a known sexually transmissible disease while asymptomatic negate his legal duty of care to disclose his condition or take precautions with his sexual partner?
Opinions:
Majority - Smith, Acting P. J.
No. A person's subjective belief that they are not contagious does not eliminate their duty of care to prevent the transmission of a known sexually transmissible disease. The court held that everyone is responsible for injuries caused by their want of ordinary care. Guided by public policy considerations, especially the state's strong interest in preventing the spread of venereal disease and the minimal burden of warning a partner, only a slight degree of foreseeability is required to impose a duty. Roe knew he had a contagious disease, knew Doe was concerned about contracting one, and made no effort to educate himself about transmission risks, instead choosing to 'gamble with her health.' His personal, unverified belief was insufficient to excuse his failure to disclose his condition or take precautions. The court also rejected Roe's privacy claim, holding that the right to privacy is not absolute and is outweighed by the compelling public health interest in preventing the spread of communicable diseases.
Analysis:
This decision solidifies the tort of negligent transmission of a sexually transmissible disease and clarifies the scope of the duty of care. It establishes that the standard for liability is not based on the defendant's subjective beliefs about contagiousness but on an objective standard of reasonable care. The ruling places an affirmative duty on individuals with known STDs to educate themselves and take preventative measures, such as disclosure or using protection, rather than relying on uninformed assumptions. This precedent strengthens protections for uninfected partners and underscores the public health policy of preventing the spread of communicable diseases over individual privacy claims in this context.
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