Endres v. Endres, No. 1584-03 CnC (Katz, J., May 27, 2004)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. 1584-03 CnC

ENDRES

v.

ENDRES

ENTRY

Plaintiff seeks compensation from her former husba nd for giving her HPV, a sexually transmitted disease. Plaintiff all eges that her former husband was unfaithful during the marriage, contrac ted the disease throughthis extramarital relationship, and then gave it to her. She seeks damages

for this wrong under the theories of negligence, ba ttery, and intentional

infliction of emotional distress. Defendant has ma de a V.R.C.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. He argues that his lack of actual or cons tructive knowledge about the disease, or the possibility that he might have had it, is fatal to plaintiff’s theory of recovery.

Plaintiff’s multiple claims hinge upon a single fo oting: namely that a spouse has a legal duty to remain sexually faithf ul to the other during marriage and that the other may recover for harm re sulting from a breach of that duty. Plaintiff urges us to accept this duty and its logical implications: 1) that negligence liability automatically attaches to the spouse whose infidelity results in the other contracting a sexua l transmitted disease; and 2) that such infidelity vitiates the consent of mar riage for the purposes of an intentional tort. While this may be a moral standa rd to which society aspires, a duty in tort law is premised on more tha n just moral culpability. Langle v. Kurkul , 146 Vt. 513, 519 (1986); see also Hoover’s Dairy, Inc. v. Mid-America Dairymen , 700 S.W.2d 426, 432 (Mo. 1985) (noting that duty arises from a “calculus of factors” including socia l considerations, moral culpability, economic burdens, foreseeability, and prevention of future harm); 1 D. Dobbs, The Law of Torts § 229, at 582 (2001). Plaintiff cites no case law or support for her proposed marriage-fi delity tort duty but rather extrapolates it from general statements of t ort principle concerning dangerous situations. See, e.g., Wright v. Shedd , 122 Vt. 475, 479 (1962) (noting that negligence may lie in the creation of a dangerous situation, such as carelessly confining horses).

But the premise that sexual activity is a dangerou s situation akin to improperly boarding a horse does not necessarily fo llow. Sexual activitydoes carry a certain amount of risk in an era where sexual transmitted

diseases run in the general population, but it is a lso the oldest, most private, and most pervasively practiced acts in human societ y. See Note,

Constitutional Barriers to Civil and Criminal Restr ictions on Pre- and

Extramarital Sex , 104 Harv. L. Rev. 1660 (1991) (noting that sex ca n be “enormously fun” and the key component of a close r elationship as well as a source of shame, ruin, and death); see also Note, Cleansing the System: a Fresh Approach to Liability for the Negligent or Fr audulent Transmission of Sexually Transmitted Diseases , 30 U. Tol. L. Rev. 647 (1999) (citing

current statistics on STD infection rates in the Un ited States). We would be highly reluctant to impose such a duty on such a br oad portion of the population for such an intimate act based solely on the prevalent moral view of infidelity. We are further dissuaded by th e plaintiff’s reasoning in light of the extensive body of case law dealing wit h these exact issues.

A large number of jurisdictions now recognize a ca use of action when one partner infects the other with a sexually transmitted disease. See, e.g., Deuschle v. Jobe , 30 S.W.3d 215 (Mo. Ct. App. 2000); McPherson v.

McPherson , 712 A.2d 1043 (Me. 1998); Hogan v. Tavzel , 660 So. 2d 350 (Fla. Dist. Ct. App. 5th Dist. 1995); Berner v. Cal dwell , 543 So. 2d 686 (Ala. 1989); R.A.P. v. B.J.P. , 428 N.W.2d 103 (Minn. App. 1988); Crowell

v. Crowell , 105 S.E. 206 (N.C. 1920). These jurisdictions ha ve supported actions for assault and battery, fraud, negligence, or seduction, where one partner has knowingly infected the other with a sex ually transmitted disease. G.Sarno, Tort Liability for Infliction of Venereal Disease , 40 A.L.R.4th 1089, § 2 (1985, Supp. 2004). Jurisdicti ons that have not recognized such a claim, like Vermont, have either not been faced with the

issue or have adhered to older decisions. See Deed s v. Strode , 55 P. 656 (Idaho 1898) (refusing a woman’s cause of action ag ainst her lover, who gave her a “loathesome disease,” because she entere d into an illegalrelationship with him). At best, Deeds and its ilk now represent a minority

view. At the least, it may be seen as outdated law that apart from Idaho has not been extended to any other jurisdiction in the last 100 years. In fact,

cases like Cromwell demonstrate that other courts have long since concluded that a partner owes a certain duty when i t comes to infectious

diseases. Cromwell , 105 S.E. at 208; see also Comment, When You Should Have Known: Rethinking Constructive Knowledg e in Tort Liability for Sexual Transmission of HIV, 52 Me. L. Rev. 261, 264–65 (2000) (tracing the historical liability for spreading dis eases, through English and American tort law). Given that Vermont has no such precedent akin to

Deeds , we expect that Vermont will follow all recent dec isions and recognize such a claim.

The question then becomes how this duty should be formed. Defendant points out that each and every case allow ing for tort recovery for the transmission of sexually transmitted diseases h as premised recovery on the defendant’s actual or constructive knowledge of the disease. See also Note, Kiss and Tell: Making the Case for the Tortio us Transmission of Herpes and Human Papilloma Virus, 66 Mo. L. Rev. 929, 940 (2001) (“In both lines of cases, courts have stressed the defen dant’s actual or imputed knowledge of his or her STD infection.”). Even rad ical commentaries that have suggested a higher duty for disease with delay ed or recessive symptoms, such as AIDS, have premised their propose d duties on the ability of the partner, beyond engaging in intercou rse, to know that he is or is likely to be carrying the disease. See, e.g., 5 2 Me. L. Rev. at 293–98 (proposing a constructive knowledge standard for li ability in transmitting AIDS based on the partner’s engaging in “high risk behavior” as defined by the U.S. Surgeon General).

Thus, the question is not whether the spouse was u nfaithful, butwhether he knew or had reason to know that he was b ringing a disease into

the relationship. The logic behind this is the lon gstanding tort principle that negligence is premised on the defendant being aware of the conditions that activate his duty. McPherson , 712 A.2d at 1046. Knowledge, whether actual or constructive, is the lens required to mak e reasonable action clear.

Id . Examples of this principle abound through tort. See, e.g., 62 Am. Jur. 2d Premises Liability § 137 (discussing the duty of an owner to invitees for reasonably discoverable conditions). Knowledge as a prerequisite to liability for transmitting an STD to a partner has additional support from its

historical antecedents. These come from nineteenth century case law dealing with liability for the wrongful transmissio n of infectious diseases.

30 U. Tol. L. Rev. at 648–50. Since these diseases were not communicated through sexual conduct, knowledge was a necessary f actor to establish that the defendant had been aware of the conditions and, therefore, acted unreasonably. Id .; see Minor v. Sharon , 112 Mass. 477, 489 (1873) (holding a landlord liable for renting out a room h e knew to be infected with small pox). When this reasoning was extended to sexually transmitted diseases, it created a broad right of a ction for sexual partners, regardless of their legal status as partners. 30 U . Tol. L. Rev. at 648–50.

This final point illustrates a major weakness in p laintiff’s position. Were we to accept her argument that a duty should e xtend from the marital relationship, the result would unduly restrict tort liability to the bounds of legal marriage. To illustrate, a boyfriend, who wa s knowingly infected by his girlfriend as a result of an affair she had out side the relationship, would have no avenue for recovery because the partner did not violate any legal

bonds. Cf. Doe v. Roe , 267 Cal. Rptr. 564, 567 (Ct. App. 1990); Meany

, 639 So. 2d at 234; R.A.P. , 428 N.W.2d at 106 (citing other policy purposes in these situations, such as the preventing the spr eading of STDs). In contrast, the spouse’s liability would be absolute. Thus, if a husband, in anopen or crumbling marriage, engaged in some extra-m arital activity, the

other spouse would have an automatic cause of actio n regardless of either the circumstances or the spouse’s awareness, solely because he slept outside the relationship. This is not liability fo r negligence but strict liability premised on monogamy. No jurisdiction ha s adopted such a harsh duty of care. Even in jurisdictions which have ado pted so-called “monogamy statutes” they have simultaneously have r efused to extend them into this area as a form of negligence per sé. Compare 104 Harv. L. Rev. at 1671–78 (discussing the purpose and limits of statutes such as Georgia’s, Ga. Code Ann. § 16-6-19 (1988)); with L ong v. Adams , 333 S.E.2d 852 (Ga. App. 1985) (holding that violation of the statute does not bar recovery for a partner’s knowing transmission o f an STD).

Strong as virtues of monogamy are, the real purpos e of tort liability in this realm is public health and preventing the s pread of such diseases. See generally G.Sarno, 40 A.L.R.4th 1089. This req uires people to have some knowledge that they have or may have the disea se. Promiscuity or infidelity have never been held to support such an inference of knowledge.

McPherson , 712 A.2d at 1045–46. We find the number of juris dictions adopting this reasoning to be persuasive, in and of itself. But we also find the reasoning behind these decisions to balance cor rectly the concerns of liability, foreseeability, and privacy. We see no reason to extend tort liability to the broad reaches that plaintiff’s the ory suggests. Moreover, in this situation plaintiff does not allege that defen dant knew or had reason to know that he was infected with HPV when he gave it to her. Therefore, plaintiff’s claims are uniformly lacking the necess ary knowledge on which liability must hang.

Defendant raised this issue of knowledge explicitl y in the multiple briefs supporting his V.R.C.P. 12(b)(6) motion. Ha ving had the need for itsquarely raised, plaintiff could have sought amendm ent but has not.

Without any actual or sufficient constructive knowl edge alleged in plaintiff’s complaint or filings, this case must be dismissed for failure to state a claim. V.R.C.P. 12(b)(6). Based on the aforegoing, defendant’s motion is gra nted. Plaintiff’s

claims are dismissed.

Dated at Burlington, Vermont, ________________, 20 04.

_________________________ Judge