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

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

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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 husband for giving her 

HPV, a sexually transmitted disease. Plaintiff alleges that her former 

husband was unfaithful during the marriage, contracted the disease through 
this extramarital relationship, and then gave it to her. She seeks damages 

for this wrong under the theories of negligence, battery, and intentional 

infliction of emotional distress. Defendant has made 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 constructive 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 footing: namely that 

a spouse has a legal duty to remain sexually faithful to the other during 

marriage and that the other may recover for harm resulting 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 sexual transmitted disease; and 

2) that such infidelity vitiates the consent of marriage for the purposes of an 

intentional tort. While this may be a moral standard to which society 

aspires, a duty in tort law is premised on more than 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 social 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-fidelity tort duty but 

rather extrapolates it from general statements of tort 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 dangerous situation akin to 

improperly boarding a horse does not necessarily follow. Sexual activity 
does carry a certain amount of risk in an era where sexual transmitted 

diseases run in the general population, but it is also the oldest, most private, 

and most pervasively practiced acts in human society. See Note, 

Constitutional Barriers to Civil and Criminal Restrictions on Pre- and 

Extramarital Sex, 104 Harv. L. Rev. 1660 (1991) (noting that sex can be 

“enormously fun” and the key component of a close relationship 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 Fraudulent Transmission 

of Sexually Transmitted Diseases, 30 U. Tol. L. Rev. 647 (1999) (citing 

current statistics on STD infection rates in the United States). We would be 

highly reluctant to impose such a duty on such a broad portion of the 

population for such an intimate act based solely on the prevalent moral 

view of infidelity. We are further dissuaded by the plaintiff’s reasoning in 

light of the extensive body of case law dealing with these exact issues. 

 A large number of jurisdictions now recognize a cause 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. Caldwell, 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 have supported 

actions for assault and battery, fraud, negligence, or seduction, where one 

partner has knowingly infected the other with a sexually transmitted 

disease. G.Sarno, Tort Liability for Infliction of Venereal Disease, 40 

A.L.R.4th 1089, § 2 (1985, Supp. 2004). Jurisdictions that have not 

recognized such a claim, like Vermont, have either not been faced with the 

issue or have adhered to older decisions. See Deeds v. Strode, 55 P. 656 

(Idaho 1898) (refusing a woman’s cause of action against her lover, who 

gave her a “loathesome disease,” because she entered into an illegal 
relationship 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 it comes to infectious 

diseases. Cromwell, 105 S.E. at 208; see also Comment, When You 

Should Have Known: Rethinking Constructive Knowledge in Tort Liability 

for Sexual Transmission of HIV, 52 Me. L. Rev. 261, 264–65 (2000) 

(tracing the historical liability for spreading diseases, through English and 

American tort law). Given that Vermont has no such precedent akin to 

Deeds, we expect that Vermont will follow all recent decisions and 

recognize such a claim. 

 The question then becomes how this duty should be formed. 

Defendant points out that each and every case allowing for tort recovery for 

the transmission of sexually transmitted diseases has premised recovery on 

the defendant’s actual or constructive knowledge of the disease. See also 

Note, Kiss and Tell: Making the Case for the Tortious Transmission of 

Herpes and Human Papilloma Virus, 66 Mo. L. Rev. 929, 940 (2001) (“In 

both lines of cases, courts have stressed the defendant’s actual or imputed 

knowledge of his or her STD infection.”). Even radical commentaries that 

have suggested a higher duty for disease with delayed or recessive 

symptoms, such as AIDS, have premised their proposed duties on the 

ability of the partner, beyond engaging in intercourse, to know that he is or 

is likely to be carrying the disease. See, e.g., 52 Me. L. Rev. at 293–98 

(proposing a constructive knowledge standard for liability 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 unfaithful, but 
whether he knew or had reason to know that he was bringing a disease into 

the relationship. The logic behind this is the longstanding 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 make 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 transmission of infectious diseases. 

30 U. Tol. L. Rev. at 648–50. Since these diseases were not communicated 

through sexual conduct, knowledge was a necessary factor 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 he knew to be infected 

with small pox). When this reasoning was extended to sexually 

transmitted diseases, it created a broad right of action 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 plaintiff’s position. 

Were we to accept her argument that a duty should extend from the marital 

relationship, the result would unduly restrict tort liability to the bounds of 

legal marriage. To illustrate, a boyfriend, who was knowingly infected by 

his girlfriend as a result of an affair she had outside 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 spreading of STDs). In 

contrast, the spouse’s liability would be absolute. Thus, if a husband, in an 
open or crumbling marriage, engaged in some extra-marital activity, the 

other spouse would have an automatic cause of action regardless of either 

the circumstances or the spouse’s awareness, solely because he slept 

outside the relationship. This is not liability for negligence but strict 

liability premised on monogamy. No jurisdiction has adopted such a harsh 

duty of care. Even in jurisdictions which have adopted so-called 

“monogamy statutes” they have simultaneously have refused 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 Long 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 of an STD). 

 Strong as virtues of monogamy are, the real purpose of tort liability 

in this realm is public health and preventing the spread of such diseases. 

See generally G.Sarno, 40 A.L.R.4th 1089. This requires people to have 

some knowledge that they have or may have the disease. 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 jurisdictions 

adopting this reasoning to be persuasive, in and of itself. But we also find 

the reasoning behind these decisions to balance correctly the concerns of 

liability, foreseeability, and privacy. We see no reason to extend tort 

liability to the broad reaches that plaintiff’s theory suggests. Moreover, in 

this situation plaintiff does not allege that defendant 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 necessary knowledge on which 

liability must hang. 

 Defendant raised this issue of knowledge explicitly in the multiple 

briefs supporting his V.R.C.P. 12(b)(6) motion. Having had the need for it 
squarely raised, plaintiff could have sought amendment but has not. 

Without any actual or sufficient constructive knowledge 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 granted. Plaintiff’s 

claims are dismissed. 

 Dated at Burlington, Vermont, ________________, 2004. 

_________________________ 

Judge