Mussivand v. David Case Brief

Summary of Mussivand v. David 544 N.E. 2d 265 (OH 1989)

Facts:
– P’s wife had an affair with D
-D infected p’s wife with a sexually transmitted disease
-p’s wife in turn infected p

Procedure:
-p sued, claiming D was negligent by not informing wife of disease
-trial court dismissed complaint, said D owed no duty of care to p
-appellate court reversed, found if certain facts found, duty of care could be proven

Decision: affirmed

Issue: Does D owe a duty of care to p?

Rule: A person is liable for transmission of an STD to a third party if the third party is the spouse of the person’s paramour. The duty of care owed to the 3rd party spouse is extinguished once the paramour spouse knows about the sexually transmitted disease.

Rationale: Court builds on two rules. 1. A person with a sexually transmitted disease and has reason to know they have the disease, has a duty to abstain from sexual contact or at minimum warn all partners about the disease. 2. Forseeability Menifee case- the test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance to act? Court then states that a reasonable person should have foreseen that the husband could have contracted the sexually transmitted disease from his wife, also D’s paramour. Therefore, D owes duty of care to p. Also, once the wife knows then the D would be absolved of duty to p. ?Issue of fact for the jury as to when wife knew about the disease.



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