[Cite as Pariano v. Perrotti, 2019-Ohio-4219.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

KELLI PARIANO                                         C.A. No.       19CA0023-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL PERROTTI                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   17CIV0860

                                  DECISION AND JOURNAL ENTRY

Dated: October 15, 2019



        HENSAL, Judge.

        {¶1}     Michael Perrotti appeals from the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Ms. Pariano and Mr. Perrotti began dating in early 2015, and had unprotected

sexual intercourse for the first time on February 14, 2015. According to Ms. Pariano, she and

Mr. Perrotti discussed their sexual histories prior to having sex, and Mr. Perrotti indicated that he

had no sexually transmitted infections. Less than a month later, after having unprotected sex

several more times together, Ms. Pariano and Mr. Perrotti travelled to Mexico for a four-day

vacation. While there, they had unprotected sex at least once a day. According to Ms. Pariano,

Mr. Perrotti told her that he had the herpes simplex virus 2 (“HSV-2”) a few days into their trip.

According to Mr. Perrotti, he told Ms. Pariano that he thought he had HSV-2 in January 2015,

well before they had sex for the first time on February 14, 2015. Ms. Pariano disputed this,
                                                 2


testifying that she never would have had unprotected sex with Mr. Perrotti had she known he had

HSV-2. Regardless, there is no dispute that Ms. Pariano continued to have unprotected sex with

Mr. Perrotti for the remainder of their trip to Mexico after he told her that he had HSV-2.

According to Ms. Pariano, she continued to have unprotected sex with him because she assumed

Mr. Perrotti had already infected her with HSV-2.           Upon returning from Mexico, their

relationship ended.

       {¶3}    In April 2015, Ms. Pariano went to the hospital with complaints of painful

urination. She also presented with a labial lesion, which the doctor swabbed for laboratory

testing. The doctor treated Ms. Pariano for a urinary tract infection, and – despite not having the

laboratory results yet – prescribed her a medication that treats HSV-2. While there was some

confusion as to when and how Ms. Pariano was informed of the laboratory test results, there was

no dispute at trial that Ms. Pariano tested positive for HSV-2.

       {¶4}    Ms. Pariano sued Mr. Perrotti, asserting causes of action for battery and

negligence. Mr. Perrotti moved for summary judgment, which the trial court denied. The matter

then proceeded to a jury trial. At the close of Ms. Pariano’s evidence, defense counsel moved for

a directed verdict, arguing that Ms. Pariano’s negligence claim was barred by the doctrine of

primary assumption of the risk. More specifically, defense counsel argued that Ms. Pariano

knowingly and voluntarily exposed herself to the risk of contracting HSV-2 when she had

unprotected sex with Mr. Perrotti after he told her he thought he had HSV-2. The trial court

denied Mr. Perrotti’s motion. Defense counsel moved for a directed verdict at the close of all the

evidence, again arguing the doctrine of primary assumption of the risk, and further arguing that

the evidence failed to establish causation, that is, that Mr. Perrotti infected Ms. Pariano with

HSV-2. The trial court denied the motion.
                                                 3


       {¶5}    Prior to instructing the jury, defense counsel objected to the trial court’s refusal to

give an instruction on comparative negligence/assumption of the risk. Defense counsel argued

that Ms. Pariano “had an affirmative obligation to take reasonable measures to protect herself,

either abstaining from sex with Mr. Perrotti or, minimally, insisting on barrier protection[,]” and

that her failure to do so was negligent. The trial court rejected defense counsel’s argument, and

declined to instruct the jury on comparative negligence/assumption of the risk.

       {¶6}    The jury ultimately determined that Mr. Perrotti did not commit battery but, by a

vote of 6-2, that he was negligent, and that his negligence proximately caused harm to Ms.

Pariano. The jury awarded Ms. Pariano $25,000 in economic damages, and $75,000 in non-

economic damages, for a total award of $100,000. Mr. Perrotti has appealed, raising four

assignments of error for this Court’s review. To facilitate our review, we will address his first

assignment of error last.

                                                 II.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A
       DIRECTED VERDICT AT THE END OF PLAINTIFF’S CASE AND AT THE
       CLOSE OF EVIDENCE.

       {¶7}    In his second assignment of error, Mr. Perrotti argues that the trial court erred by

denying his motion for a directed verdict at the close of Ms. Pariano’s evidence, and at the close

of all the evidence. He argues that Ms. Pariano’s negligence claim was legally barred by the

doctrine of primary assumption of the risk because Ms. Pariano knowingly and voluntarily

continued to have sex with him after he told her that he thought he had HSV-2. He also argues

that the trial court ignored case law indicating that both parties in a sexual relationship must take

reasonable precautions to protect themselves against sexually transmitted infections.
                                                 4


       {¶8}    “A motion for a directed verdict may be made on the opening statement of the

opponent, at the close of the opponent’s evidence or at the close of all the evidence.” Civ.R.

50(A). “When a motion for a directed verdict is entered, what is being tested is a question of

law; that is, the legal sufficiency of the evidence to take the case to the jury.”          Ruta v.

Breckenridge-Remy Co., 69 Ohio St.2d 66, 68 (1982). A trial court must grant a motion for a

directed verdict after the evidence has been presented if, “after construing the evidence most

strongly in favor of the party against whom the motion is directed, * * * reasonable minds could

come to but one conclusion upon the evidence submitted * * *.” Civ.R. 50(A)(4); Parrish v.

Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, ¶ 16. “By the same token, if there is substantial

competent evidence to support the party against whom the motion is made, upon which evidence

reasonable minds might reach different conclusions, the motion must be denied.” Hawkins v.

Ivy, 50 Ohio St.2d 114, 115 (1977). Because a motion for a directed verdict presents a question

of law, our review is de novo. Spero v. Avny, 9th Dist. Summit No. 27272, 2015-Ohio-4671, ¶

17, citing Jackovic v. Webb, 9th Dist. Summit No. 26555, 2013-Ohio-2520, ¶ 6.

       {¶9}    We begin our review with a recitation of the law as it relates to negligence under

these circumstances.    “A plaintiff alleging negligence must prove that the defendant owed

plaintiff a duty, that the defendant breached the duty, that the plaintiff suffered harm and that the

harm was proximately caused by the defendant’s breach of duty.” Steiner v. Ganley Toyota-

Mercedes Benz, 9th Dist. Summit No. 20767, 2002-Ohio-2326, ¶ 11, citing Mussivand v. David,

45 Ohio St.3d 314, 318 (1989). Regarding Mr. Perrotti’s duty, “[a] person who knows, or should

know, that he or she is infected with a venereal disease has the duty to abstain from sexual

conduct or, at a minimum, to warn those persons with whom he or she expects to have sexual
                                                5


relations of his or her condition.”1 Mussivand at paragraph one of the syllabus. Revised Code

Section 3701.81(A) supports this duty, providing that:

       No person, knowing or having reasonable cause to believe that he is suffering
       from a dangerous, contagious disease, shall knowingly fail to take reasonable
       measures to prevent exposing himself to other persons, except when seeking
       medical aid.

A violation of this statute, “which creates a private cause of action for someone who has been

negligently exposed to a contagious disease,” does not constitute negligence per se. Burris v.

Thorpe, 166 Fed.Appx. 799, 801 (6th Cir.2006); Mussivand at 320. Rather, the statute “sets

forth a standard of due care which should be exercised by a reasonably prudent person under the

circumstances.” Mussivand at 320.

       {¶10} As previously noted, defense counsel moved for a directed verdict after the close

of Ms. Pariano’s evidence, arguing that Ms. Pariano’s negligence claim was barred by the

doctrine of primary assumption of the risk. “Primary assumption of the risk means that a

defendant owes no duty whatsoever to the plaintiff.” Horvath v. Ish, 134 Ohio St.3d 48, 2012-

Ohio-5333, ¶ 18. “Underlying this judicially created doctrine is the notion that certain risks are

so inherent in some activities that they cannot be eliminated.” Otterbacher v. Brandywine Ski

Ctr., Inc., 9th Dist. Summit No. 14269, 1990 WL 72327, *4 (May 23, 1990).

       {¶11} Here, Ms. Pariano testified that she did not have HSV-2 prior to having

unprotected sex with Mr. Perrotti. Her medical records corroborated this to the extent that they

contained no indication that she had HSV-2 prior to April 2015, although there was also no

indication that she had ever been specifically tested for it. Ms. Pariano also testified that Mr.

Perrotti did not tell her that he had HSV-2 until they were in Mexico (which was after they had


       1
        We note that Mr. Perrotti has not challenged the fact that he knew or should have
known that he had HSV-2.
                                                 6


unprotected sex multiple times), and that she tested positive for HSV-2 several weeks after

returning from Mexico.

       {¶12} Defense counsel argued that Ms. Pariano knowingly and voluntarily exposed

herself to the risk of contracting HSV-2 when she had unprotected sex with Mr. Perrotti after he

told her he thought he had HSV-2. While Ms. Pariano did testify that she continued to have

unprotected sex with Mr. Perrotti after he told her that he had HSV-2 in Mexico, that fact – in

and of itself – does not defeat her negligence claim. Mr. Perrotti had a duty to disclose his

venereal disease to Ms. Pariano prior to having sex with her on February 14, 2015.              See

Mussivand, 45 Ohio St.3d 314, at paragraph one of the syllabus. According to Ms. Pariano, he

failed to do this and, as a result, she contracted HSV-2. To the extent that these facts raise an

issue relative to causation (i.e., whether Mr. Perrotti infected Ms. Pariano before or after he told

her he had HSV-2), causation and the existence of a duty are two separate elements to a

negligence claim. Steiner, 2002-Ohio-2326, at ¶ 11. Construing the evidence most strongly in

favor of Ms. Pariano, we cannot say that the trial court erred by rejecting defense counsel’s

primary-assumption-of-the-risk argument and denying the motion for a directed verdict at the

close of Ms. Pariano’s evidence.

       {¶13} We now turn to the motion for a directed verdict that defense counsel made at the

close of all the evidence. At that point, defense counsel argued that Ms. Pariano failed to

establish causation, and again argued that her negligence claim was barred by the doctrine of

primary assumption of the risk. Defense counsel’s argument relative to primary assumption of

the risk echoed his prior argument and, for the same reasons articulated above, we again hold

that the trial court did not err by rejecting that argument. To the extent that defense counsel

argued that engaging in unprotected sex is an inherently dangerous activity that relieved Mr.
                                                 7


Perrotti of any duty to disclose his venereal disease, the trial court did not err by rejecting that

argument. The law clearly imposes a duty on persons infected with a venereal disease to warn

sexual partners of their condition prior to engaging in sexual conduct. See Mussivand, 45 Ohio

St.3d 314, at paragraph one of the syllabus; R.C. 3701.81(A).

       {¶14} Regarding causation, defense counsel argued that the medical experts who

testified agreed that without serological testing from the parties before and after they had

unprotected sex for the first time, there was no medical way of knowing whether and/or when

Mr. Perrotti infected Ms. Pariano with HSV-2. This is a challenge to the lack of direct evidence

to prove that Mr. Perrotti infected Ms. Pariano with HSV-2. It, however, ignores the fact that

direct evidence is not required; a plaintiff can establish negligence through circumstantial

evidence. McComis v. Baker, 40 Ohio App.2d 332, 336 (2d Dist.1974) (“The law does not

require every fact and circumstance which makes up a case of negligence to be proved by direct

and positive evidence * * *.”). The lack of direct evidence “is not fatal where the chain of

circumstances leads to a conclusion which is more probable than any other hypothesis reflected

by the evidence.” Id. Here, Ms. Pariano testified that Mr. Perrotti did not tell her that he had

HSV-2 prior to having unprotected sex with her and that, as a result, he infected her with HSV-2.

Again, her medical records corroborated this to the extent that they contained no indication that

she had HSV-2 prior to April 2015, two months after beginning a sexual relationship with Mr.

Perrotti. Construing this evidence most strongly in favor of Ms. Pariano, we cannot say that the

trial court erred by denying Mr. Perrotti’s motion for a directed verdict at the close of all the

evidence. In light of the foregoing, Mr. Perrotti’s second assignment of error is overruled.
                                                   8


                                    ASSIGNMENT OF ERROR III

          THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON
          COMPARATIVE NEGLIGENCE AND REJECTING APPELLANT’S
          PROPOSED JURY INSTRUCTION ON COMPARATIVE NEGLIGENCE.

          {¶15} In his third assignment of error, Mr. Perrotti argues that the trial court erred by

failing to instruct the jury on comparative negligence. He argues that Ms. Pariano willingly

engaged in unprotected sex with him, and that the jury should have been allowed to consider the

reasonableness of her actions, and to apportion negligence accordingly.

          {¶16} “When reviewing a trial court’s jury instructions, this Court reviews the record to

determine whether the trial court’s decision to give or decline to give a requested jury instruction

constitutes an abuse of discretion under the facts and circumstances of the case.” State v. Staab,

9th Dist. Lorain No. 04CA008612, 2005-Ohio-3323, ¶ 6. “The term ‘abuse of discretion’ * * *

implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157

(1980).

          {¶17} Prior to instructing the jury, defense counsel objected to the trial court’s refusal to

give an instruction on comparative negligence. Defense counsel argued that Ms. Pariano “had an

affirmative obligation to take reasonable measures to protect herself, either abstaining from sex

with Mr. Perrotti or, minimally, insisting on barrier protection[,]” and that her failure to do so

was negligent. In support of his position, defense counsel cited a New York case wherein the

court stated:

          A person assumes the risk where he voluntarily subjects himself to a peril known
          to him or generally observable by a person of ordinary prudence in his situation[.]
          In the same vein, persons who engage in unprotected sex, at a time of the
          prevalence of sexually transmitted diseases, including some that are fatal, assume
          the risk of contracting such diseases. Both parties in an intimate relationship have
                                                9


       a duty to adequately protect themselves. When one ventures out in the rain
       without an umbrella, should they complain when they get wet?

(Emphasis sic.) Doe v. Roe, 598 N.Y.S.2d 678, 681 (N.Y.Just.Ct.1993).

       {¶18} The trial court rejected defense counsel’s argument, noting that neither it, nor

defense counsel, was able to locate any Ohio law that supported a comparative negligence

instruction under these circumstances. It explained that if Ms. Pariano was negligent for having

unprotected sex, then Mr. Perrotti was also negligent for having unprotected sex, and that it did

not want to go down that “rabbit hole[.]” It further explained that if the jury concluded that Mr.

Perrotti told Ms. Pariano that he had HSV-2 prior to having unprotected sex with her, then he

met his duty under the law and, accordingly, was not negligent.

       {¶19} Mr. Perrotti’s argument regarding comparative negligence under these

circumstances is flawed. The first element of a negligence claim is the existence of a duty.

Here, there can be no dispute that Mr. Perrotti had a duty to disclose his venereal disease to Ms.

Pariano prior to engaging in sexual conduct with her. He either did, or he did not. If he did, then

Ms. Pariano’s negligence claim would fail as a matter of law, thereby obviating any need for a

comparative-negligence instruction. If he did not, then the issue becomes whether his failure to

do so proximately caused Ms. Pariano to be infected with HSV-2. Only after proximate cause is

established would comparative negligence potentially become relevant.              But the only

justification for a comparative-negligence instruction under these facts would be that Ms.

Pariano was negligent solely because she had unprotected sex. This Court, like the trial court,

does not find Mr. Perrotti’s reliance on a New York case from 1993 to be persuasive, and he has

pointed to no Ohio law that supports his position. We hold that the trial court did not err by

refusing to instruct the jury on comparative negligence and, accordingly, overrule Mr. Perrotti’s

third assignment of error.
                                               10


                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR
       JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE
       ALTERNATIVE, NEW TRIAL.

       {¶20} In his fourth assignment of error, Mr. Perrotti argues that the trial court erred by

denying his motion for judgment notwithstanding the verdict or, in the alternative, his motion for

a new trial. We will address each motion in turn.

       {¶21} Under Civil Rule 50(B), after the jury’s verdict is entered in the trial court’s

judgment, the losing party may move to have the judgment set aside. Judgment notwithstanding

the verdict pursuant to Civil Rule 50(B) “is proper if upon viewing the evidence in a light most

favorable to the non-moving party and presuming any doubt to favor the nonmoving party

reasonable minds could come to but one conclusion, that being in favor of the moving party.”

Williams v. Spitzer Auto World, Inc., 9th Dist. Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 9.

If, however, “there is substantial evidence to support [the non-moving party’s] side of the case,

upon which reasonable minds may reach different conclusions, the motion [for judgment

notwithstanding the verdict] must be denied.” Jackovic v. Webb, 9th Dist. Summit No. 26555,

2013-Ohio-2520, ¶ 15, quoting Osler v. City of Lorain, 28 Ohio St.3d 345, 347 (1986). When

considering a motion for judgment notwithstanding the verdict, a court must consider neither the

weight of the evidence nor the credibility of the witnesses. Osler at syllabus. We review a trial

court’s ruling on a motion for judgment notwithstanding the verdict de novo. Goodyear Tire &

Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, ¶ 4.

       {¶22} In his motion for judgment notwithstanding the verdict, Mr. Perrotti argued that

the trial court should set aside the jury’s verdict because there was no medical evidence

indicating that he infected Ms. Pariano with HSV-2. More specifically, he argued that there was
                                                11


no way of establishing proximate cause absent serological testing done before and after the

parties had unprotected sex for the first time. We reject this argument for the same reasons

previously articulated in our analysis of Mr. Perrotti’s second assignment of error. Accordingly,

we hold that the trial court did not err by denying Mr. Perrotti’s motion for judgment

notwithstanding the verdict. We now turn to his motion for a new trial.

       {¶23} Civil Rule 59 governs motions for a new trial, providing, in part, that “[a] new

trial may be granted to all or any of the parties and on all or part of the issues upon any of the

following grounds: * * * [e]xcessive or inadequate damages,” * * * [t]he judgment is not

sustained by the weight of the evidence[,] * * * [t]he judgment is contrary to law[, and] * * *

[e]rror of law occurring at the trial and brought to the attention of the trial court by the party

making the application.” Civ.R. 59(A)(4), (6), (7), and (9). “Depending upon the basis of the

motion for a new trial, this Court will review a trial court’s decision to grant or deny the motion

under either a de novo or an abuse of discretion standard of review.” Calame v. Treece, 9th Dist.

Wayne No. 07CA0073, 2008-Ohio-4997, ¶ 13, citing Rohde v. Farmer, 23 Ohio St.2d 82 (1970),

paragraphs one and two of the syllabus. “[W]hen the basis of the motion involves a question of

law, the de novo standard of review applies, and when the basis of the motion involves the

determination of an issue left to the trial court’s discretion, the abuse of discretion standard

applies.” Dragway 42, L.L.C. v. Kokosing Constr. Co., Inc., 9th Dist. Wayne No. 09CA0073,

2010-Ohio-4657, ¶ 32.

       {¶24} In his motion for a new trial, Mr. Perrotti again argued that Ms. Pariano’s

negligence claim was barred by the doctrine of primary assumption of the risk, and that the trial

court erred by failing to instruct the jury on comparative negligence. For the reasons previously

articulated in our analysis of Mr. Perrotti’s second and third assignments of error, we hold that
                                                12


the trial court did not err by rejecting those arguments. Mr. Perrotti’s motion also summarily

concluded that the judgment was against the weight of the evidence, and that the jury award

resulted in excess damages to Ms. Pariano. He, however, developed no argument in support of

those positions. To the extent that Mr. Perrotti has developed an argument on appeal relative to

the damage award, this Court will not address it in the first instance. Catalanotto v. Byrd, 9th

Dist. Summit No. 27824, 2016-Ohio-2815, ¶ 12 (“Due to our role as a reviewing court, we

cannot make a determination regarding the merits of an argument in the first instance.”). In light

of the foregoing, Mr. Perrotti’s fourth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ITS NOVEMBER 6, 2018 JOURNAL ENTRY
       WITH INSTRUCTIONS FOR SERVICE DENYING DEFENDANT’S MOTION
       FOR SUMMARY JUDGMENT.

       {¶25} In his first assignment of error, Mr. Perrotti argues that the trial court erred by

denying his motion for summary judgment because Ms. Pariano knowingly and voluntarily

assumed the risk of contracting HSV-2 from him. Upon review of the record, we conclude that

this issue is moot. The Ohio Supreme Court has held that “[a]ny error by a trial court in denying

a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same

issues raised in the motion demonstrates that there were genuine issues of material fact

supporting a judgment in favor of the party against whom the motion was made.” Continental

Ins. Co. v. Whittington, 71 Ohio St.3d 150 (1994), syllabus.          At trial, the parties offered

conflicting testimony as to when Mr. Perrotti informed Ms. Pariano that he had HSV-2. Under

these facts, that alone demonstrates that a genuine issue of material fact existed. As a result, Mr.

Perrotti’s first assignment of error is moot, and is overruled on that basis. See Besancon v. Cedar

Lane Farms, Corp., 9th Dist. Wayne No. 16AP0003, 2017-Ohio-347, ¶ 11.
                                                13




                                                III.

       {¶26} Mr. Perrotti’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.
                                           14


APPEARANCES:

KEVIN J. BREEN, Attorney at Law, for Appellant.

L. RAY JONES, Attorney at Law, for Appellee.
