I posted a blog article titled Sexually Transmitted Diseases and Alimony Proceedings on October 16, 2010. In it I promised a follow-up article discussing the status of Ohio law concerning domestic or marital torts.
In Ohio, like in most states, interspousal tort immunity has been abolished. A person may bring a personal injury action against his current spouse or between a former spouse for personal injury which occurred during the marriage. Marital torts can include any claim for personal injuries and are often referred to as domestic or marital torts because they are torts that occur within the family context, such as between spouses. Marital torts, moreover, can be lodged in connection with intentional or negligent acts, including the transmission of sexual diseases, psychological distress and emotional injury, slander and libel.
As in all torts, there must be a violation of some duty owed to the plaintiff, and generally that duty must arise by operation of law, not merely an agreement between the parties. Torts are civil actions arising from the conduct, deliberate or careless, of one individual in dealings causing harm or damage to another; and they also arise as a result of intent or negligence. Intentional torts, which may result in civil and criminal liability, include such actions as assault, battery, false imprisonment, libel, slander, intentional infliction of emotional distress, invasion of privacy, wrongful death, interference with business. Negligent conduct results from a deviation from the standard of care a reasonable person is expected to exercise.
One of the more common domestic tort actions involves a claim for the transmission of a sexually transmitted disease. It appears that many states have considered these types of cases under many claims, such as negligence, fraudulent misrepresentation, and intentional infliction of emotional distress, battery, and assault. However, Ohio case law suggests these types of cases have been brought primarily under negligence and/or fraudulent misrepresentation claims. To prevail with a negligence claim for the transmission of an STD, “a plaintiff must show that defendant knew or should have known, at the time of their sexual contact, that he was capable of transmitting a communicable disease.” But for any claim one brings for recovery of this injury, the elements of that specific tort must be met. This is where proof problems may come into play. For example, a plaintiff to a negligence claim may have great difficulty proving the defendant knew or should have known about the disease. Also, it may be difficult for the plaintiff to prove he/she contracted the STD from the defendant, especially since some STDs are curable and no trace of it remains in the person.
In Ohio, if a party files one of these domestic tort claims along with a divorce/dissolution action, the tort claim must be considered independently of the divorce action and would typically be filed in a different Court from the divorce proceeding. Domestic tort actions are still fairly rare in Ohio, although litigation of domestic tort cases in some other states appear to occur more frequently. A word of caution: if a party to a divorce or dissolution is contemplating filing such a tort action, care must be taken not to include a “general release of claims” provision in the decree. Doing so could bar that claim completely!
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.