Legal Question in Personal Injury in California

Re: Hiv/aids

Your question did not say that the plaintiff knew the defendant had HIV. Instead it said that the plaintiff knew of the defendant's sexual history. Knowing medical history and sexual history are two different categories.

Therefore, the result may fall between Mr. Hoffman's answer and Mr. Cohen's answer, depending on the totality of the circumstances.

Re: Hiv/aids

Oh yeah. Success of the suit will depend upon the facts. Feel free to contact me to discuss your situation.

Re: Hiv/aids

Mr. Lupoff is right; I misread your question and thought it said the plaintiff knew the defendant had HIV. Now that I look at it again, I realize that it doesn't even say the *defendant* knew he had HIV. It would be very difficult to win such a case if the defendant was unaware of his condition -- especially since the plaintiff evidently had all the same information the defendant had about his sexual history.

One other point: even if the plaintiff has a potentially winning theory of liability he would still have to prove that the defendant was the one who gave him HIV. Proving this point might require taking blood tests from many of the plaintiff's other sex partners going back many years, and then determining whether any who turn out to be HIV-positive had already been exposed when they slept with the plaintiff.

Re: Hiv/aids

In John B. v. Superior Court, 38 Cal. 4th 1177, 2006 D.J. D.A.R. 8738 (2006), the California Supreme Court held that the liability of a person for negligent transmission of HIV extends to situations where the actor, under totality of the circumstances, has reason to know of the infection. Thus, the party suing, will have to show that the sum of the circumstances will lead to such a conclusion.

Re: Hiv/aids

I agree with what Mr. Cohen wrote, but I don't think he read the question correctly. His answer does not account for the fact that the plaintiff was aware that the defendant had HIV and chose to have unprotected sex with him anyway.

People can get sued for almost anything. What matters is whether a lawsuit might succeed, and I don't think this one would have much of a chance.

Knowingly exposing an unsuspecting person to the AIDS virus could normally support several civil causes of action -- and might well support criminal charges to boot. But where the other person knows his sex partner has HIV and chooses to engage in high-risk behavior with him anyway, he can't blame his partner for contracting the illness he willingly risked contracting. Taking the risk was his own choice and he cannot hold someone else liable if the risk went badly for him.

My answer might be different if the plaintiff's judgment was impaired (by alcohol, for example, or perhaps by a medical condition) and if the defendant either caused this impairment or knowingly took advantage of it. Nothing you wrote suggests that this is what happened.

It's tragic whenever someone contracts HIV, but in this case it seems the tragedy was self-inflicted. It would be unjust for the law to hold others accountable for self-inflicted injuries no matter how serious those injuries might be.