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S.S and G.W V. State Farm

State Farm's liability in a genital herpes transmission case examined through legal analysis, intent, negligence, and consent. Court opinions, precedent cases, and medical research are discussed.

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S.S and G.W V. State Farm

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  1. S.S and G.W V. State Farm • Background S.S. contracted genital herpes after engaging in consensual sexual intercourse with G.W. at his home in November 1986.

  2. Opinion • Simon Leung: State farm should be liable to the S.S. and G.W.

  3. Argument 1.That fact issue existed as to whether transmission of genital herpes by insured was intentional injury, within meaning of policy exclusion. 2.Issue of material fact as to whether insured under homeowners' policy was operating under mistaken impression that he could not transmit genital herpes when he had no symptoms of disease. 3.State Farm also argues that even if G.W. did not intend to injure S.S. by his conduct, his intent to injureis inferred as a matter of law.

  4. Intent and Negligence • Intent： • intent is broader than a desire or purpose to bring about physical results.

  5. Intent and Negligence • Negligence： • reckless or wanton • 疏忽大意 过于自信

  6. Intent and Negligence The line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty. 界限已经被法庭指出，即已知的危险不仅仅再是一个可预见的风险而是一个有正常理性的人都会竭力去避免的东西，并且行为人在脑海中是极确定这种危险的发生。（这就是故意，不再是过失）

  7. Intent and Negligence • The summary judgment evidence in this case does not indicate that G.W. acted with intent to cause S.S. bodily injury.The summary judgment evidence indicates that G.W. did not believe it was possible to transmit the disease without an active lesion and fails to demonstrate that G.W. knew that engaging in sexual intercourse with S.S. was substantially certain to result in transmission of the disease to S.S.

  8. Intentional act and intentional consequence • The court concluded that “a reasonable possibility that an actor is contagious does not compel the conclusion that it is highly certain a particular act of his will result in the infection of another. • 法庭总结道，行为人具有传染性只是一种合理的可能性，而结果却是，依据行为人意愿作出的特定行为，极有可能导致了另一方被疾病所传染，（意图和结果）并不具有必然关系。

  9. Intentional act and intentional consequence • In this case, when the infected party is not experiencing any symptoms of the disease, transmitting herpes is not a natural result of engaging in sexual intercourse. Additionally, we are not determining whether the transmission of genital herpes was an “accident” or whether G.W.'s acts were intentional, but specifically whether G.W. intentionally caused bodily injury to S.S. by transmitting herpes to her. • 这个案件中，当患者一方完全没有感知到任何疾病的症状时，疱疹的传播就不是性交所带来的自然结果。另外，我们还没有做出判定，生殖器疱疹的传播是否是一种"意外"或者GW的行为的确是故意的，但是对SS造成的特定伤害是否是GW故意通过传播生殖器疱疹带给她的。

  10. Mistaken impression • Hecht’s dissent ：doctor • Fact：optometrist

  11. Mistaken impression • Researcher's theory • Herpes Simplex Virus in*377 SEXUALLY TRANSMITTED DISEASES 941 (King K. Holmes et al. eds., 1990); Gregory J. Merts, M.D. et al., Frequency of Acquisition of First-episode Genital Infection with Herpes Simplex Virus from Symptomatic and Asymptomatic Source Contacts, 12 SEXUALLY TRANSMITTED DISEASES 33, 37–39 (1985); James F. Rooney, M.D. et al., Acquisition of Genital Herpes from an Asymptomatic Sexual Partner, 314 NEW ENG.J.MED. 1561, 1563–64 (1986).

  12. Be infered as a matter of law • Fact：S.S. contracted genital herpes after engaging in consensual sexual intercourse with G.W. at his home in November 1986.

  13. 1. consensual privileges (consent),which depend on the plaintiff agreeing to the defendant's otherwise tortious act; 2. nonconsensual privileges, which shield the defendant from liability for otherwise tortious conduct even if the plaintiff objects to the defendant's conduct. Be infered as a matter of law

  14. Be infered as a matter of fact Meaning of Consent: (1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. • (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

  15. Be infered as a matter of fact • Fact:minors or forcible sex acts

  16. Be infered as a matter of law • This case differs from the sexual misconduct cases inferring intent because G.W. and S.S. were consenting adults. California and Minnesota specifically refuse to infer intent to injure as a matter of law when the voluntary sexual acts of consenting adults result in the transmission of herpes. • 这个案件有别于几个涉及故意发生不正当性行为的例子，因为GW和SS都是两情相愿的成年人。加利福尼亚州和明尼苏达州特别排斥在自愿性性行为中把传播疱疹的故意伤害推定为法律问题。

  17. Q and A Time

  18. Simon Leung • Thank you very much

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