Doe v. Roe

267 Cal. Rptr. 564 (1990)

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Nature of the Case

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Facts

P and D worked together at a supermarket. D asked her out several times and they engaged in frank and open discussions about sexual intercourse and other personal matters. D told her that he had been involved in a longtime relationship with his live-in girlfriend and P told him she was involved with a boyfriend who was a merchant marine and away at sea. The subject of venereal disease came up. P told D that she and her boyfriend were 'clean,' and that she would not want to put herself in a position where she could contract a sexual disease. D replied, 'I don't blame you, I wouldn't want one either,' but did not tell her he had previously contracted herpes. D had suffered three prior outbreaks of herpes. In 1978, D consulted Dr. Ziegler, who told him he had herpes. Defendant remembers nothing more about the conversation. In 1979, five blisters appeared in the same area and defendant consulted Dr. Lowry, who confirmed the previous diagnosis. When he had a third outbreak in 1981, D did not see a doctor or do anything else about it. Each time the lesions healed by themselves. P and D began dating in early 1985 and a sexual relationship developed. Over a four-month period, they had sex once or twice a week. D never disclosed the existence of his herpes condition, nor did he ever wear a condom during sexual relations. D made no attempt to educate himself about the disease, nor did he tell P about it because he did not think he could give it to anybody. P contracted genital herpes from D. P suffered greatly. She came down with a 102-degree fever, swollen lymph glands, a sore throat, and painful lesions on her genitalia which lasted three weeks. P suffers outbreaks on the average of twice a month, each of which lasts about 10 days. She has undergone humiliation, severe physical discomfort, and emotional distress. The disease has put a serious strain on her relationship with her boyfriend and sexual relations between them have drastically decreased. P is now subject to an increased risk of cervical cancer and there is a significant chance that any child she bears will have to be delivered by Cesarean section. P sued D for negligence and intentional misrepresentation. D moved for nonsuit on the cause of action for intentional misrepresentation. The motion was unopposed and the court granted it. The court found the total damages to plaintiff to be $200,000, but it reduced that figure by 25 percent due to contributory negligence on her part. D appealed. D contends that as a matter of law he was relieved of a duty to P because he believed that he could not transmit the disease unless he had an active manifestation of the infection.