NCJ Number
117485
Journal
New Jersey Lawyer Issue: 126 Dated: (January/February 1989) Pages: 40-43
Date Published
1989
Length
4 pages
Annotation
This article examines theories of civil liability for parties involved in the transmission of the AIDS virus through blood transfusion, sex or risky behavior, and intravenous drug use.
Abstract
Potential liability for AIDS transmitted by blood transfusion may be based on theories of breach of implied warranty, strict products liability, and negligence. Courts have rejected liability based on breach of implied warranty (blood is not a product) and strict product liability. Regarding negligence, the duty that a blood supplier owes to the transfusion recipient will be measured against the standard of care that existed at the time of the transfusion. Liability for sexually transmitted AIDS may be based on theories of negligence, battery, misrepresentation, products liability (condoms), tort liability based on statutory violation, and failure to warn. The theories on which to base liability for contracting AIDS from sharing a contaminated needle are battery (inducement to use a needle which the potential defendant knew was used previously by a person who tested positive for HIV) and negligence. Regarding the statute of limitations for civil suits involving AIDS transmission, the courts are likely to accept that the statute of limitations begins running when confirmatory tests rule out the probability of a false positive result. In any negligence case, the plaintiff has the burden of proving that the negligence of the defendant was the proximate cause of injury to the plaintiff. Damage awards for the wrongful transmission of the HIV virus are potentially great. 15 footnotes.