CACI 429 Negligent Sexual Transmission of Disease

New May 2017; Revised May 2020

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This instruction should be given with CACI No. 400, Negligence—Essential Factual Elements. In a claim for negligent transmission of a sexually communicable disease, the elements of negligence, duty, breach, and causation of harm must be proved. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188 [45 Cal.Rptr.3d 316, 137 P.3d 153].)

One has a duty to avoid transmitting an infectious disease if that person should have known of the infection (constructive knowledge). (John B., supra, 38 Cal.4th at pp. 1190–1191.) While the existence of a duty is a question of law for the court, what a person should have known is a question of fact.

It must be noted that in John B., the court limited its holding on constructive knowledge to the facts of the case before it, which involved a couple who were engaged and subsequently married; a defendant who was alleged to have falsely represented himself as monogamous and disease-free, and who insisted the couple stop using condoms; and a plaintiff who agreed to stop using condoms in reliance on those allegedly false representations. The court did not consider the existence or scope of a duty for persons whose relationship did not extend beyond the sexual encounter itself, whose relationship did not contemplate sexual exclusivity, who had not represented themselves as disease-free, or who had not insisted on having sex without condoms. (John B., supra, 38 Cal.4th at p. 1193.) Therefore, this instruction may not be appropriate on facts that were expressly reserved in John B.

•“[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.” (Doe v. Roe (1990) 218 Cal.App.3d 1538, 1543 [267 Cal.Rptr. 564].)

•“[T]o be stricken with disease through another’s negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another’s negligence.” (John B., supra, 38 Cal.4th at p. 1188, original italics.)

•“Because ‘ “[a]ll persons are required to use ordinary care to prevent others being injured as a result of their conduct” ’, this court has repeatedly recognized a cause of action for negligence not only against those who have actual knowledge of unreasonable danger, but also against those who have constructive knowledge of it.” (John B., supra, 38 Cal.4th at p. 1190, internal citation omitted.)

•“ ‘[C]onstructive knowledge,’ which means knowledge ‘that one using reasonable care or diligence should have, and therefore is attributed by law to a given person’, encompasses a variety of mental states, ranging from one who is deliberately indifferent in the face of an unjustifiably high risk of harm to one who merely should know of a dangerous condition. (John B., supra, 38 Cal.4th at pp. 1190–1191, internal citations omitted.)

•“[T]he tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection. Under the reason-to-know standard, ‘the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.’ In other words, ‘the actor has knowledge of facts from which a reasonable man of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his conduct would be predicated upon the assumption that the fact did exist.’ ” (John B., supra, 38 Cal.4th at p. 1191, internal citations omitted.)

•“[W]e are mindful that our precedents direct us to consider whether a duty of care exists ‘ “on a case-by-case basis.” ’ Accordingly, our conclusion that a claim of negligent transmission of HIV lies against those who know or at least have reason to know of the disease must be understood in the context of the allegations in this case, which involves a couple who were engaged and subsequently married; a defendant who falsely represented himself as monogamous and disease-free and insisted the couple stop using condoms; and a plaintiff who agreed to stop using condoms in reliance on those false representations. We need not consider the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself, whose relationship does not contemplate sexual exclusivity, who have not represented themselves as disease-free, or who have not insisted on having sex without condoms.” (John B., supra, 38 Cal.4th at p. 1193.)