DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

YULIA FOREST KOHL,

Appellant,

v.

NORMAN DEAN KOHL, JR.,

Appellee.

No. 4D13-1194

[October 1, 2014]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; James W. McCann, Judge; L.T. Case No. 43-

2009DR000083.

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

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

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 
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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 
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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., 

162 N.E. 99, 101 (N.Y. 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:
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(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 DCA1979)).

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, 137 P.3d 153, 

159 (Cal. 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.

 

1See, e.g., State v. Lankford, 102 A. 63 (Del. 1917); Crowell v. Crowell, 105 S.E. 

206, 208 (N.C. 1920); Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 276-77 (Cal. 

Ct. App. 1984); Berner v. Caldwell, 543 So. 2d 686, 690 (Ala. 1986), overruled on 

other grounds by Ex parte Gen. Motors Corp., 769 So. 2d 903 (Ala. 1999); Long v. 

Adams, 333 S.E.2d 852, 854-55 (Ga. Ct. App. 1985); Doe v. Johnson, 817 F. 

Supp. 1382, 1393 (W.D. Mich. 1993).
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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 attempted to track the language of section 384.24 

and alleged she contracted genital herpes after engaging in sexual 

intercourse with the defendant. 576 So. 2d at 404. The Second District 

agreed with the plaintiff that “such a negligence cause of action is 

cognizable in Florida.” Id. However, the court disagreed that a violation 

of section 384.24 constitutes negligence per se, holding that the statute is 

“not designed to protect a particular class of persons, but rather the public 

in general.” Id. at 405. With that ruling, we do not disagree.

From this determination, the Second District explained “that if a 

plaintiff is able to file a complaint that tracks section 384.24, that plaintiff 

will have presented prima facie evidence of negligence, not absolute proof 

of negligence.” Id. The court then took its reasoning a step further, 

however, by holding that

in order to state a cognizable cause of action for negligent 

transmission of a sexually transmissible disease, a plaintiff 

must allege that the defendant knew he or she was infected 

with one of the sexually transmissible diseases enumerated in 
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section 384.24, that the defendant had been informed that 

said disease could be communicated through sexual 

intercourse, and that the defendant had sexual intercourse 

with the plaintiff without informing the plaintiff of the 

presence of the disease and without securing the plaintiff's 

consent to sexual intercourse under such circumstances.

Id. (emphasis added). Since the plaintiff in that case “fail[ed] to set forth 

the allegations necessary to track section 384.24, Florida Statutes (1989),” 

the court held she failed “state a cognizable cause of action.” Id. 

We disagree with Gabriel’s broad holding that section 384.24 

exclusively controls the elements of the negligence cause of action to which 

it applies. Unless “liability is limited or abrogated by legislative 

enactments,” Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997), 

a plaintiff asserting common law negligence need not “establish the 

violation of a relevant safety statute or regulation.” Wenzel v. Boyles 

Galvanizing Co., 920 F.2d 778, 782 n.1 (11th Cir. 1991) (applying Florida 

law). Further, a statute accomplishes such displacement only where it 

“unequivocally states that it changes the common law, or is so repugnant 

to the common law that the two cannot coexist.” Thornber v. City of Fort 

Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). Therefore, in a case of 

common law negligence based on the transmission of a sexually 

transmissible disease, section 384.24 does not exclusively delineate the 

elements of the cause of action. Nor are the diseases specified in section 

384.24 the only diseases that might form the basis of a negligence cause 

of action; even though HPV is not one of the diseases enumerated in the 

statute, its transmission could still form the basis of a common law 

negligence claim. A violation of section 384.24 is evidence of negligence, 

not a catalog of the required elements of the cause of action. See Fla. Std.

Jury Instr. (Civ.) 401.9.2

The coexistence of common law negligence and a garden variety 

statutory violation is grounded in the common law’s role as “an evolving 

body of law.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council 

of Carpenters, 459 U.S. 519, 533 n.28 (1983). The common law “‘must 

keep pace with changes in our society’ and ‘may [even] be altered when the 

 

2We note that, as a criminal statute, section 384.24 requires proof that a person 

“know[ ] he or she is infected with one or more” of the enumerated diseases and

that “such person has been informed that he or she may communicate this 

disease to another person through sexual intercourse.” Proof of the criminal 

violation, which requires such knowing conduct, will also be powerful evidence 

of negligence.
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reason for the rule of law ceases to exist, or when the change is demanded 

by public necessity or required to vindicate fundamental rights.’” Jews for 

Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1104 (Fla. 2008) (quoting Stone v. 

Wall, 734 So. 2d 1038, 1043 (Fla. 1999)). As one court has explained:

One of the great virtues of the common law is its dynamic 

nature that makes it adaptable to the requirements of society 

at the time of its application in court. There is not a rule of 

the common law in force today that has not evolved from some 

earlier rule of common law, gradually in some instances, more 

suddenly in others, leaving the common law of today when 

compared with the common law of centuries ago as different 

as day is from night. The nature of the common law requires 

that each time a rule of law is applied it be carefully 

scrutinized to make sure that the conditions and needs of the 

times have not so changed as to make further application of 

it the instrument of injustice. Dean Pound posed the problem 

admirably in his Interpretations of Legal History (1922) when 

he stated, ‘Law must be stable, and yet it cannot stand still.’

Hack v. Hack, 433 A.2d 859, 868–69 (Pa. 1981). One way that common 

law negligence evolves with changes in society is that it incorporates 

contemporary standards of conduct evidenced by legislative enactments.

This is not, therefore, a case tasking us with “creating” a new cause of 

action unrecognized at common law. See, e.g., Jews for Jesus, Inc., 997 

So. 2d at 1104 (recognizing that “the tort of false light did not exist at 

common law”); Estate of McCall v. United States, 134 So. 3d 894, 915 (Fla. 

2014) (“At common law, Florida did not recognize a cause of action for 

wrongful death.” (citation omitted)). Negligence is a traditional tort; 

negligent transmission of a sexually transmissible disease is merely a 

variant of it. We join the majority of states in recognizing negligent 

transmission of a sexually transmissible disease as a common law 

negligence action.

The Contours of the Claim

Our next task is to determine whether the former wife’s complaint 

stated a cause of action. “To state a claim for negligence, the plaintiff must 

allege the existence of a duty, breach of that duty, causation, and 

damages.” Horton v. Freeman, 917 So. 2d 1064, 1066 (Fla. 4th DCA 2006). 

Regarding the duty element, “‘imposition of a duty is nothing more than a 

threshold requirement that if satisfied, merely opens the courthouse 

doors.’” Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 763 
- 8 -

(Fla. 4th DCA 2009) (quoting Whitt v. Silverman, 788 So. 2d 210, 221 (Fla. 

2001)). As we have explained:

[W]hether a duty exists is a question of law for the court. 

Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla. 

2005). Crucial to the duty inquiry is “whether the defendant’s 

conduct foreseeably create[s] a broader ‘zone of risk’ that 

poses a general threat of harm to others.” McCain v. Fla. 

Power Corp., 593 So. 2d 500, 502 (Fla. 1992). “[T]he zone of 

risk created by a defendant defines the scope of the 

defendant’s legal duty and the scope of the zone of risk is in 

turn determined by the foreseeability of a risk of harm to 

others.” Smith v. Fla. Power & Light Co., 857 So. 2d 224, 229 

(Fla. 2d DCA 2003).

Knight v. Merhige, 133 So. 3d 1140, 1144-45 (Fla. 4th DCA 2014); see also 

Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002) (“The core predicate for 

imposing liability is one of reasonable foreseeability—the cornerstone of 

our tort law.”).

“In applying the ‘foreseeable zone of risk’ test to determine the existence 

of a legal duty, the supreme court has focused on the likelihood that a 

defendant’s conduct will result in the type of injury suffered by the 

plaintiff.” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co.,

715 So. 2d 343, 345 (Fla. 4th DCA 1998). When a sexually transmissible 

disease—such as HPV—“is almost exclusively spread through sexual 

contact, it is foreseeable that one’s sexual partner is susceptible to the 

contagion if the infected partner is aware he has the disease or suffers 

from symptoms of the disease.” Deuschle v. Jobe, 30 S.W.3d 215, 219 (Mo. 

Ct. App. 2000). As a consequence, a person who knows that he or she 

suffers such an illness has “a duty either to avoid sexual contact with 

uninfected persons or, at least, to warn potential sex partners that they 

have [it] before sexual contact occurs.” R.A.P. v. B.J.P., 428 N.W.2d 103, 

108 (Minn. Ct. App. 1988); see also B.N. v. K.K., 538 A.2d 1175, 1179 (Md. 

1988) (stating that an “infected person has a duty to take reasonable 

precautions–whether by warning others or by avoiding contact with them–

to avoid transmitting the disease”); Hogan, 660 So. 2d at 352 (recognizing 

that “[a] certain amount of trust and confidence exists in any intimate 

relationship, at least to the extent that one sexual partner represents to 

the other that he or she is free from venereal or other dangerous 

contagious disease” (quoting Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 

276-77 (Cal. Ct. App. 1984)). 
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The linchpin of liability for imposing a legal duty to avoid negligent 

transmission of a sexually transmissible disease is the defendant’s 

knowledge that he or she harbors the disease. A duty will not lie where 

the defendant is unaware of the condition, since the risk created by his or 

her sexual activity is unforeseen. See Restatement (Second) of Torts § 289 

cmt. b (1965) (stating that “[i]n order that an act may be negligent it is 

necessary that the actor should realize that it involves a risk of causing 

harm to some interest of another”).

In other states, courts require the plaintiff to “show that the defendant 

had actual or constructive knowledge that he or she was infected with the 

transmitted STD.” Endres v. Endres, 968 A.2d 336, 340 (Vt. 2008) 

(emphasis added); Rossiter v. Evans, No. 08-1815, 2009 WL 5125922, at 

*3 n.5 (Iowa Ct. App. Dec. 30, 2009) (“The majority of courts that have 

dealt with this issue have concluded that constructive knowledge of a 

sexually transmitted disease is sufficient for the imposition of liability.”); 

John B., 137 P.3d at 160 (“[W]e 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.”); Berner, 543 So. 2d at 689; McPherson v. McPherson, 712 A.2d 

1043, 1046 (Me. 1998); Deuschle, 30 S.W.3d at 219. The availability of a 

constructive knowledge showing is critical, since “[a] plaintiff will rarely be 

able to show that a defendant had actual knowledge of his or her infection.” 

Endres, 968 A.2d at 341.

In Florida, many negligence actions that are predicated upon the 

defendant’s knowledge apply the “actual or constructive knowledge” 

standard. See, e.g., Freeman v. BellSouth Telecomms., Inc., 954 So. 2d 45, 

46-47 (Fla. 1st DCA 2007) (owner’s duty to maintain his or her premises 

in a reasonably safe condition); Williams v. Joseph L. Rozier Machinery Co., 

135 So. 2d 763, 765 (Fla. 2d DCA 1961) (retailer of a defective product); 

Grant v. Thornton, 749 So. 2d 529, 532 (Fla. 2d DCA 1999) (negligence 

against landlord). We see no reason to depart from the majority view 

incorporating actual or constructive knowledge into the elements of the 

tort here at issue, particularly in light of our legislature’s declaration that 

“sexually transmissible diseases constitute a serious and sometimes fatal 

threat to the public and individual health and welfare of the people of the 

state and to visitors to the state.” § 384.22, Fla. Stat. (2013). 

Applying an actual or constructive knowledge standard, our sister 

states have carved out two situations sufficient to impose a duty in 

negligence for transmitting a sexually transmissible disease. First, a 

defendant will have the requisite knowledge if he or she has been formally 

diagnosed with a sexually transmissible disease by a medical professional. 
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See John B., 137 P.3d at 160. Second, the existence of obvious

symptoms—such as rashes, genital warts, or discharge—will suffice to 

impute constructive knowledge. See, e.g., M.M.D. v. B.L.G., 467 N.W.2d 

645, 647 (Minn. Ct. App. 1991) (“A reasonable person with recurring sores 

on the genitals, who also has been told by a physician that a herpes culture 

may be advisable, should know there is a reasonable possibility that 

herpes has been contracted. In addition, a reasonable person should 

know an acne-type condition on the genitals could be communicated to 

others through sexual contact.”); Meany v. Meany, 639 So. 2d 229, 234 

(La. 1994) (“Certainly, the presence of open, oozing genital sores indicates 

a serious problem, whether or not a diagnosis exists. If a defendant has 

experienced an attack or has sought medical advice concerning such 

symptoms, he would likely be deemed by the courts to possess the 

requisite knowledge, whether or not an actual diagnosis could be proved.”). 

As we discuss below, however, a requirement of actual knowledge to 

establish a legal duty is applicable where the disease at issue is HPV, 

which is uniquely prevalent and often not symptomatic. 

The Instant Case

In this case, the former wife’s complaint raises two allegations to infer 

the former husband’s knowledge of his HPV infection. Both are insufficient 

to satisfy even a constructive knowledge requirement, and are far below 

the actual knowledge standard applicable to HPV. 

First, the complaint contended that the former husband engaged in 

“high-risk” sexual behavior, such as having sexual relations outside his 

marriage and sleeping with prostitutes. Second, it contends that the 

former husband “knew or should have known he was exposed to HPV as 

his ex-wife had undergone a hysterectomy.” Both grounds seek to extend 

liability beyond constructive knowledge, from what the defendant “should 

have known,” to what “may have happened”—a privacy invasion we believe 

“open[s] a door better left closed.” Doe v. Johnson, 817 F. Supp. 1382, 

1393 (W.D. Mich. 1993). 

The complaint’s “high-risk” allegation is similar to one rejected in 

Endres, where a plaintiff asserting negligent transmission of HPV alleged 

her husband “knew that by engaging in an extramarital relationship he 

exposed himself to potential risk of becoming infected with an incurable 

infection which he could then transmit.” 968 A.2d at 338. Surveying 

Vermont case law and decisions from other jurisdictions, the court took a 

“narrower” approach, requiring “at least some evidence that [the] 

defendant had reason to know he was infected with an STD.” Id. at 341. 
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We agree with the approach in Endres, in that “constructive knowledge” 

encompasses only “[k]nowledge that one using reasonable care or diligence 

should have, and therefore that is attributed by law.” Black’s Law 

Dictionary 888 (8th ed. 2004); see also Wells v. Palm Beach Kennel Club, 

35 So. 2d 720, 721 (Fla. 1948). “Policy considerations strongly suggest 

that merely engaging in ‘high risk’ activity does not satisfy the shouldhave-known standard and does not, nor should it, impose a duty upon 

individuals to disclose previous high-risk behavior.” Timothy J. Hasken, 

A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between 

Negligence and the Transmission of HPV, 95 Iowa L. Rev. 985, 998 (2010).

From a logistical standpoint, developing the contours of “high-risk” 

behavior would be an unwieldy, unpredictable task. As the court 

explained in Johnson, 817 F. Supp. at 1394: 

[I]mposition of a duty to disclose one’s “high risk” status raises 

a number of questions: as a matter of law, what is “high risk” 

activity? Who is in this “high risk” group? How should “high 

risk” be defined? Even if a workable definition of “high risk” 

were discovered, would a duty be imposed on non-high risk 

group members to disclose to every potential sex partner all 

prior sexual contacts with partners who were so-called “high 

risk” group members? Would the duty of disclosure 

encompass prior sexual contacts with others known to be 

“promiscuous” or “sexually active?” What are the equal 

protection implications of imposing such a standard on a class 

of people? What are the privacy implications of imposing such 

a standard on a class of people? Would the duty eventually 

extend to everyone who has had any sexual contact outside of 

a monogamous relationship? 

Id. Like Johnson, we decline to open Pandora’s box by imposing a duty in 

negligence for engaging in “high risk” sexual behavior.

Similar logic bars the imposition of a legal duty based on the former 

wife’s allegation that the former husband knew of his HPV because his 

prior wife underwent a hysterectomy. A hysterectomy is “an operation to 

remove a woman’s uterus.” Rebecca L. Van Court, Uterine Fibroids and 

Women's Right to Choose, 26 J. Legal Med. 507, 510 (2005) (citation 

omitted). It can be justified for myriad reasons, not the least of which 

include: fibroid tumors, endometriosis, prolapse of the uterus, ovarian 

cysts, cancer of the reproductive organs, ectopic pregnancy, pelvic 

inflammatory disease, abnormal uterine bleeding, or premenstrual 

syndrome. Gynecological Malpractice Litigation, 64 Am. Jur. Trials 1, § 70. 
- 12 -

Without evidence linking the hysterectomy to HPV, there is no 

justifiable reason to believe a reasonable person in the former husband’s 

shoes should have known he had HPV from that fact alone. The former 

husband’s “knowledge” in this case cannot be predicated on remote 

chance and guesswork. 

For these reasons, we hold that the former wife’s complaint failed to 

state a claim for negligent transmission of a sexually transmissible 

disease.

The Nature of HPV Requires That a Defendant Have Actual 

Knowledge That He or She Harbors the Disease in Order to be 

Liable in Common Law Negligence

As an alternative basis for affirmance, the former husband urges this 

Court, upon public policy grounds, to hold that HPV is excluded from the 

tort of negligent transmission of a sexually transmissible disease. 

Although we do not agree that transmission of the disease should be 

excluded from negligence liability, we agree that the tort can be based only 

on a person’s actual knowledge that he or she carries the disease, and not 

on constructive knowledge.

Recently, this Court confirmed that “[c]onsiderations of public policy 

are appropriate in determining whether a negligence cause of action will 

lie.” Knight, 133 So. 3d at 1150. As we explained: 

Finding that a legal duty exists in a negligence case involves 

the public policy decision that a “defendant should bear a 

given loss, as opposed to distributing the loss among the 

general public.” Levy v. Fla. Power & Light Co., 798 So. 2d 

778, 780 (Fla. 4th DCA 2001), rev. den. 902 So. 2d 790 (Fla.

2005). A legal “[d]uty is an allocation of risk determined by 

balancing the foreseeability of harm, in light of all the 

circumstances, against the burden to be imposed.” Id. 

(quoting Vaughan v. Eastern Edison Co., 719 N.E.2d 520, 523 

(Mass. App. Ct. 1999)).

Id. at 1149-50 (quoting Biglen v. Fla. Power & Light Co., 910 So. 2d 405, 

409 (Fla. 4th DCA 2005)).

The crux of the former husband’s argument is that “HPV presents 

unique challenges in the context of assigning liability for injury” since it is 

uniquely prevalent in modern society and many HPV carriers do not even 
- 13 -

know they are infected. HPV is the most common and fastest growing 

sexually transmissible infection in this country, affecting nearly 79 million 

Americans, with 14 million people becoming newly infected each year. 

Ctrs. For Disease Control & Prevention, Genital HPV Infection – Fact Sheet 

(2014), http://cdc.gov/std/HPV/STDFact-HPV.htm. The result is that 

“[a]t least half of sexually active men and women will contract HPV during 

the course of their lifetimes.” Elizabeth J. Chen, Equal Protection: Why the 

HPV Vaccine Should Be Mandated for Both Boys and Girls, 38 Wash. U.

J.L. & Pol'y 289, 292-93 (2012). 

“HPV is most often contracted during vaginal and anal sex, but may 

also be passed through other sexual activities including oral sex and 

genital-to-genital contact.” Anthony D. Pegion and Andrew Zacher, 

Mandating HPV Vaccinations in the United States, 14 DePaul J. Health Care 

L. 169, 171 (2011). Currently, scientists have found “at least thirty 

distinct strains of HPV that can infect human genitalia.” Deana A. Pollard, 

Sex Torts, 91 Minn. L. Rev. 769, 776 (2007). 

Low-risk strains may cause genital warts, whereas high-risk 

strains may cause cervical cancer or other more rare types of 

cancer. However, in the vast majority of HPV cases, the 

infected persons are unaware of their infections. With most 

HPV infections, the infected person experiences no symptoms 

and there is no commercially available way to test for HPV. 

Therefore, HPV is very often unknowingly passed between 

sexual partners.

Hasken, supra, at 993. It has been said “the more dangerous strains cause 

‘subclinical’ infections, so-called because they are invisible and often go 

undetected or may lie dormant for years.” Pollard, supra, at 776.

Currently, the CDC does not even recommend an HPV test for men. 

Ctrs. For Disease Control & Prevention, HPV and Men – Fact Sheet (2014), 

http://cdc.gov/std/hpv/stdfact-hpv-and-men.htm. Thus, in most cases

— particularly those where the defendant is male — “establishing 

constructive knowledge of infection will be difficult.” Endres, 968 A.2d at 

343. 

Given the disease’s prevalence, and the fact that its effects may remain 

dormant for years if not decades, we hold that only a defendant with actual 

knowledge that he or she has HPV should be subject to liability in 

negligence for its transmission. Accordingly, a separate reason for 

affirmance is the absence of allegations in the former wife’s second 
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amended complaint establishing the former husband’s actual knowledge 

of his predicament.

Affirmed.

GERBER, J., concurs.

CONNER, J., concurs in result only.

* * *

Not final until disposition of timely filed motion for rehearing.