She's/He's Got The Jack, Do You Got a Case?

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

If I am ever general counsel for Taco Corp, these will be the kinds of things I guess I will have to deal with.

A guy went on Tinder, picked up a woman, and got herpes from her. Yeah? Why is that news? Well, the guy sued her for giving her the as-of-today incurable disease. (source) The woman knew that she had herpes, but she lied to the guy about her condition. She claims that she only thought it would be contagious during an outbreak. He is now suing her for giving him the virus.

Does he have a case? Probably.

People do bad things to one another with their genitalia. In one case I reviewed, a wife accused a husband of intentionally infecting her with an STD. Adam M. v. Christina B., 2013 Alas. LEXIS 73 (Alaska June 5, 2013). This guy went around and tried to give HIV to thousands of people — on purpose. But, lets set aside the extreme example of the Lord Jeffrey Amherst school of sexually transmitted disease transmission. That's easy. You give someone a disease, with the specific intent of giving them the disease, you're probably going to jail, and you're definitely going to be subject to tort liability.

If I were to ever put this issue on a torts exam, (and if I ever teach torts, I probably would) I wouldn't use the Tinder story. I'd probably use this AC/DC story: The AC/DC song, "The Jack" is a very thinly veiled story about a venereal disease carrier. Bon Scott had Gonorrhea, and he knew it, but he had unprotected sex with a woman just the same. Well then, she had sex with Phil Rudd (AC/DC's drummer), and she unknowingly passed it along to him. But, given the rapid succession of partners, she thought that she caught it from Rudd, so she sent him her $35 doctor's visit bill. At the next show, Scott then brought her on stage and told her that it was he who actually owed her the $35. (source) The story doesn't continue to tell us if Phil Rudd then got it from the unnamed woman (lets call her "Jackeline"), but for the sake of lawsplaining, lets presume he did.

Who owes whom?

Well, Bon Scott is right, he is likely liable to Jackeline. He had a venereal disease, yet he had unprotected sex with her, apparently without warning her so that she could either take precautions or assume the risk. Some might even call it "rape" if Scott had sex with Jackeline under false pretenses, but I'm not buying or selling that theory. Nevertheless, "you broke it, you buy it" works for The Jack too.

But, what about Phil Rudd? Jackeline gave it to him, right? Is she liable? Probably not. But what about Scott being liable to Rudd?

Normally, to be liable for transmitting an STD to someone else, you have to have actual or constructive knowledge that you're infected. Rossiter v. Evans, 2009 Iowa App. LEXIS 1720 (Iowa Ct. App. Dec. 30, 2009); McPherson v. McPherson, 712 A.2d 1043, 1046 (Me. 1998); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989).

Ok, but what about this constructive knowledge? What does that mean? "Actual knowledge" means you "actually know." "Constructive knowledge" means you know, or you should have known.

You should have known you have The Jack? The Supreme Court of Vermont addressed this in Endres v. Endres, 968 A.2d 336 (Vt. 2008). "A plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection." Therefore, constructive knowledge is enough. In California, there was a rejected argument that a defendant must have actual knowledge of the STD. John B. v. Superior Court, 38 Cal. 4th 1177, 45 Cal. Rptr. 3d 316, 137 P.3d 153 (2006) The court ruled "We are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”

But, how far does this "constructive knowledge" go? Should Jackeline be liable to Rudd because she should have known she would catch something? I'd imagine that if someone is promiscuous enough that they're not even sure who gave them an STD, they are on some kind of constructive notice that they picked something up somewhere along the way, no?


In Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993). A woman claimed that she got HIV from Magic Johnson. She claimed that he should have known he had it, and should have disclosed his sexual history to her prior to having sex with her. After all, his list is legendary. Nevertheless, the court did not find that such a duty existed.

I find that imposition of a duty to disclose a "high risk" lifestyle prior to sexual conduct, which theoretically puts a sex partner "at risk," would open a door better left closed. Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993)

McPherson v. McPherson, 712 A.2d 1043 (Me. 1998) dealt with a less famous party, but similar issues. In that case, a married defendant had an extra-marital affair, contracted HPV, and then gave it to his wife. Since Mr. McPherson never tested positive for HPV and never experienced any symptoms of HPV, he was on neither actual nor constructive notice of his infection. Thus, he was not liable to his ex-wife.

And more recently, a Florida Appellate court tossed out an argument that a high-risk fucker should be liable to the fuckee for any transmission of an STD. Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014). In that case, like McPherson, Mr. Kohl was accused by his wife of sleeping around, but this time with hookers and escorts. Id at 131. This still was not enough constructive knowledge.

Therefore, unless something changes, "constructive knowledge" in this context means "constructive knowledge that you have a disease" not constructive knowledge that you've done things that someone would reasonably extrapolate makes you high-risk.

So Scott owes Jackeline, for sure. Jackeline does not owe Rudd. But, what about Scott owing Rudd, if he got an Scott's Jack from Jackeline? I have never seen a case where the plaintiff is seeking compensation for an STD that he contracted from a girl, who didn't know she had it, from the guy that gave it to her. But, under normal tort principles, such a case might be successful. If you bang someone, and you know you have a communicable disease, and you give it to them, then you should be liable for the reasonably foreseeable results of that bangage, right?

So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that's a reasonably foreseeable occurrence.

Last 5 posts by Marc Randazza


  1. Jeremy says

    So in essence, she's being sued for lying about having herpes, not for infecting him? I suppose that makes sense, but doesn't define the limits to constructive knowledge all that well. For example, if she knew she had something but didn't know it was herpes, if he asked could she have still said no and been fine b/c she didn't know if it was herpes, or would his asking require her to say something like "I don't know if it's herpes, but I'm pretty sure I have something"?

  2. AH says

    Interesting read!

    I would have thought that Scott wouldn't owe Rudd because he didn't know Jackeline would be fucking Rudd. I wouldn't have considered that he should have known she was promiscuous.

  3. SirWired says

    What does "constructive knowledge" refer to in general? I'm sure they go over this with L1's, but I don't have any legal training beyond a couple of law classes in college.

    In an STD context, would that mean, for instance: "Gee, I have a bunch of sores in my genital region!", even if one has not had an STD test?

  4. David Schwartz says

    So, if the result is that you give the STD not only to Jackeline, but to your eskimo brother, that's a reasonably foreseeable occurrence.

    Assuming you have at least constructive knowledge that you have an Eskimo brother.

  5. Paradigm Spider says

    Gonna have to echo SirWired here.

    "Constructive knowledge" is definitely not a lay term, and if you're going to be using it that much in this article, you should probably throw in a quick definition or explanation early on. Maybe explain the difference between constructive and actual knowledge while you're at it.

  6. says

    1) I thought I explained it.
    2) To the extent I did not, I would think someone could figure it out from the context.
    3) To the extent one could not, perhaps I could direct you to this new thing called "Google"
    4) For those that 1-3 don't work for, I added a few phrases to the piece that should help anyone who doesn't get it, can't get it, and can't google it.

  7. says

    What happens if I'm a pimp, and one of my skank hoes gives the clap to some cracker motherfucker? Will the judge understand that bitches be trippin' or am I on the hook for the dude's health care? Should my hoes be on Obamacare?

  8. Simon Spero says

    So you're saying you have this burning sensation on your Wagon Mound ? Do you think you have a case?

  9. JB says

    I doubt you are a big enough pimp to be covered by the employer mandate. I also doubt you are a big enough pimp to offer them employer-based insurance, so they theoretically are subject to the individual mandate. However, I also doubt you pay them enough to raise them above the income exemption to that.

    So it depends on whether you're in a state that accepted or declined the medicaid expansion.

  10. Danny in Canada says

    Does this create a perverse incentive to not get tested so that people can legitimately say they didn't know they were infected?

    (and am I using 'perverse incentive' correctly?)

  11. AlphaCentauri says

    @rich, you have no idea. I know someone who was one of numerous women who contracted HIV from a guy who knew he was infected and cut, pasted, and photocopied a negative HIV test result to show women. And it wasn't one-night stands; she considered him her fiance… (He did go to jail.)

  12. Fasolt says

    I suspect we're about to see some examples of this sort of thing popping up in the near future with the recent revelations of that dumbass Charlie Sheen.

  13. Sad Panda says

    To anyone coming here from the LA Times: For your own mental health, go away! And if you stay, don't say you weren't warned.

    Congrats Ken & team Popehat.

  14. ketchup says

    I wondered what the LA Times said about Popehat, so I went to their site and did a search for "Popehat". The search engine assumed I meant "pop hit" and showed me results for that instead. When I said "no, I really meant 'Popehat'", there were three results, the most recent of which was from June. So Sad Panda, care to elaborate?

    Edit: Never mind. I just searched LA Times for "Ken White" and found the relevant article. DUH.

  15. Dan Weber says

    IANAL, so here is my laymen's definition. "Constructive" generally means "not directly but that was the inevitable conclusion." Or "effectively."

    If I tell an employee "your new work hours are 2am-4am at our offices in the next state over," that is "constructive dismissal." Meaning I've fired them, and all the passive-aggressive dissembling I've done about "well you could still come to work" is recognized as shite.

    If I don't have physical ownership of an object, but my lawyer does and will act on my authority, that's "constructive possession."

    Basically, "constructive" is meant to deal with all the arm-chair philosophers who think they have discovered a loophole that wasn't dealt with centuries ago by the legal system.

  16. Bees! says


    Please teach law school. You're clearly skilled at instructing legal concepts in a highly digestible manner.


    Bees! *buzzzzzzz*

  17. Xmas says

    I think Scott would have had a duty to warn Rudd if he'd seen Rudd with Jackeline shortly after Scott gave her a dose.

  18. Robert Beckman says

    On Constructive vs Actual knowledge –

    At oral argument earlier this year In Henderson v United States 13­-1487 Justice Breyer described it thusly:

    "Where does all this come from? I mean, to me, when somebody uses the word "constructive X," that just means it's not X and ­­[…] it's a way of pretending that it's X when it isn't."

    So Constructive means that it's useful to pretend that it happened, but didn't really happen.

    Also: that was a weird argument the government made in that case, good thing it came out the way it did.

  19. says

    I'm gathering that She likes Rock and Roll, was Spoiling for a Fight with Rudd, but was Thunderstruck when Bon admitted to the Dirty Deeds done dirt cheap?

    Oh and if this action occurred in Aust.. There would be no vicarious liability those many years ago.. Just a bit of biffo, and Anything Goes!

    (Personally I'm not a big AC/DC Fan.. I find 'The Angels' and 'Cold Chisel' way way better)