Deb sued Dan for having wrongfully exposed her to AIDS by misrepresenting to her he had been tested for and had no problems, when he, in fact, was HIV positive. Deb represents she would not have engaged in unprotected sex with him, or married him had she known of his condition.

Danny told Deb before they started having sexual relations that he had been tested for AIDS and other sexually transmitted diseases and he had tested negative. There is no indicationwhether he was tested prior to establishment of their relationship. He did have various minor health problems prior to the parties' marriage and thereafter, that indicate he was then HIV positive, but the various doctors they consulted did not suggest he be tested and they apparently did not suspect HIV was a cause of his problems.

The parties married in 1989. They had a son born in 1991. In 1991, Daniel was arrested for lewd and lascivious conduct and was required to be tested for AIDS. When the parties learned Daniel tested positive for HIV, both were devastated. Shortly thereafter, the HIV virus manifested into AIDS.

As a consequence, Deb and Dan ceased having unprotected sexual relations. Deborah had their child tested and his results were negative. Deborah has undergone testing every six months since the discovery and has tested negative. Her most recent test was in September of 1996. She testified she lived in fear of getting AIDS, and that no doctor had been able to tell her she might not yet get it from Daniel, although their last unprotected sexual contact was in 1992.

Themedical testimony in the record established that it is likely Dan was HIV positive prior to 1988, but neither Dan nor Deb knew of this before 1992. Dr. Bonita Sorensen, director of the Volusia County Health Department, who specializes in HIV and AIDS patients, testified in a deposition that because of the lapse of time between the parties' last unprotected sexual relations and Deborah's negative test in 1996, within a reasonable degree of medical certainty and probability, Deborah did not acquire the disease from Dan. She said 95% of persons exposed to AIDS test positive within three months; 4% test positive within six months; and the remaining 1% within one to three years. Deborah had exceeded these time limits.

Does Deb have a valid tort cause of action against Dan?

Is there a breach of duty?

What duty?

What breach?

What does she have to prove to establish a prima facie case?