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Kohl v. Kohl

Court of Appeal of Florida, Fourth District

October 1, 2014, Decided

No. 4D13-1194

Opinion

 [*130]  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, [**2]  we "treat the factual allegations of the complaint as true and . . . consider those allegations in the light most favorable to the plaintiff[]." Hollywood Lakes 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  [*131]  routine pap smear that she had contracted "high risk" HPV, resulting in the development of "precancerous cell changes."

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149 So. 3d 127 *; 2014 Fla. App. LEXIS 15251 **; 39 Fla. L. Weekly D 2074

YULIA FOREST KOHL, Appellant, v. NORMAN DEAN KOHL, JR., Appellee.

Prior History:  [**1] Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; James W. McCann, Judge; L.T. Case No. 43-2009DR000083.

Forest-Kohl v. Kohl, 126 So. 3d 1094, 2012 Fla. App. LEXIS 8269 (Fla. Dist. Ct. App. 4th Dist., May 23, 2012)

CORE TERMS

disease, transmissible, HPV, sexually, infected, cause of action, constructive knowledge, former husband, common law, actual knowledge, sexual intercourse, high risk, genital, common law negligence, former wife, transmitted, track, sexual contact, courts, legal duty, foreseeability, allegations, STD, statutory violation, communicated, hysterectomy, predicated, high-risk, marriage, symptoms

Civil Procedure, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Appeals, Standards of Review, De Novo Review, Motions to Dismiss, Failure to State Claim, Questions of Fact & Law, Torts, Negligence, Elements, Breach of Duty, Causation, General Overview, Proof, Violations of Law, Statutes, Elements, Criminal Law & Procedure, Crimes Against Persons, Sex Crimes, Criminal Offenses, Classification of Offenses, Misdemeanors, Safety Codes, Acts & Mental States, Mens Rea, Knowledge, Governments, Courts, Common Law, Duty, Foreseeability of Harm, Evidence, Province of Court & Jury, Standards of Care, Reasonable Care, Recognition of Risk, Public Health & Welfare Law, Healthcare, Reasonable Person