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Law School Case Brief

Mussivand v. David - 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989)


To establish actionable negligence, one must show in addition to the existence of a duty, a breach of that duty and injury resulting proximately therefrom. The existence of a duty in a negligence action is a question of law for the court to determine. There is no formula for ascertaining whether a duty exists. Duty is the court's expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.


A husband filed a complaint in tort against his doctor. The husband claimed that the venereal disease that he contracted from his wife was transmitted to her when the doctor had sex with the husband's wife. He filed claims based on the doctor's negligence and misrepresentation. The trial court dismissed all the claims and on appeal with the Court of Appeals, the dismissals were reversed. The the case was appealed to the Supreme Court of Ohio.


Was the doctor liable for being negligent?




The court held that a person who knew, or should have known, that he or she was infected with a venereal disease had a duty to abstain from sexual relations, or at a minimum, to warn his or her sexual partners of his or her disease. The doctor argued that while he may have had a duty to disclose his disease to the wife of the husband, the duty did not extend to the husband. The doctor also maintained that the wife was the cause of the husband's injuries. The court reasoned that a spouse was a foreseeable sexual partner. The court held that the doctor's negligence was the proximate cause of the husband's injury unless the wife knew or should have known of her exposure to venereal disease. The court reversed the dismissal of the husband's negligence claim because the wife's knowledge presented a factual question to be decided by the trier of fact. The court upheld the dismissal of the husband's misrepresentation claim because his reliance on the doctor's denial that he had an affair with the wife was not justified.

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