# FILED January 8, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ LARRY AUBREY HENSON, Plaintiff-Appella

nt, Shelby Circuit No. 79501 Vs. C.A. No. 02A01-9711-CV-00291 ELIZABETH ELLEN SORRELL, Defendant-Appellee.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE JAMES F. RUSSELL, JUDGE

Hal Rounds of Memph

is For Appellant No Appearance For Appellee

AFFIRMED Opinion filed:

W. FRANK CRAWFORD ,

PRESIDING JUDGE, W.S.

CONCURS: ALAN E. HIGHERS, JUDGE SEPARATELY CONCURS A ND DISSENTS: HOLLY KIRBY LILLARD, JU DGE This case involves allegations of promissory fraud, fraudulent concealmen t, b reach of contract, co nv ersion, and intentional infliction of emotional distress arising from a woman’s failure to inform her partner that she had stopped taking bi rth control pills, her subsequent1 In another appeal currently before this Court,

Henson appeals th

e paternity

ruling of the juvenile court and challenges the constitutionality of the Tennessee Paternity Statute. 2 pregnancy, and the birth of a child. The plaintiff, Larry Aubrey Henson (Henson), appeals the trial court’s judg

ment for the defe

ndant, Elizabeth

Sorrell (Sorrell) , after a trial on the merits. The parties firs

t met in 1989 while at

tending Memphis Stat

e University. Whil

e the two
were frie nds, they did not become romantically involved at that time. In fact, both part ie s married other people, yet stayed in contact with one another. They began having lunc

h “dates” in the ear ly 1990's, yet it was not until their marriages bega

n to fail in 1995 that

a romantic relationship

began. While

both parties were

separated from

their spouses, a sexual

relationship began in April 1995. Both par ties subsequently d

ivorced their

respective spouses, and Henson began to reside with Sorrell. According to testimony, the parties engaged in sexual interco

urse daily. Prior

to the beginning of their sexual relationship Sorrell informed Henson that she was taking birth control pills. According to

the tri al record and exhibits, Sorrell was experienced with a variety of birth control methods and had been taking birth

control pills since December 1994. However, in late June 1995 Sorrell stopped taking birth control pills be c ause she was experiencing side effects as sociate d wi th the contraceptive. Sorrell admits that she did not informHe nson about s topping the birth control pills, and the parties did not engage in any alternative for

m of birth control. As ninth grade biology

teaches us, inter

course everyda

y, coupled with a la

ck of birth control measures, can cause pregnancy. As would be expected, Sorrell became p regnant shortly after sh e stopped the birth control pills, and gave birth to a child in March 1996. Ther e is n o contention in this appeal that H enson is not the fat

her of that child.

In fact accord

ing to testimony, Henson was supportive of Sorrell during the pregnancy, and currently pays $300 per month in child suppor

t. 1 Several months af

ter the child was b

orn, Henson filed

suit against Sorrell alleging five causes of action: A. Promissory Fraud The complaint alleges that de fendant induced plaintiff to engage in sexual intercourse and to inseminate defendant by f a lsely representing that she would assume the exclusive3

resp onsibility

to protect against conception, that she knew that this representation was fa ls e because she intended to

cease taking birth control pills in order to conceive, that plaintiff relied upon her representation without any kno w ledge of the falsity thereof, and failed to take any precaution to prevent conception. B. Fraudulent Concealment Plaintiff alleges that def

endant represe

nted that she would

have exclusive r

esponsibility to prevent conception

but failed to infor

m the plaintiff tha

t she had ceased

taking birth

control pills and fraudulently

concealed this ma

terial fact in or

der to induce plai

ntiff toinseminate

her. C. Breach of Contract Plaintiff alleges that the p

arties had an exp

ress agreement

to practice and be

responsible for birth control proc

edures to preve

nt conception of a

child and that def

endant intentiona

lly breached this agreement when she ceased taking the birth control pill. Plaintiff alleges thathe continued to perform the ter ms of the agreement by “continuing sexual relations with defendant, in reasonable reliance that the defendant was fulfilling her obligations under the agreement.” D. Conversion Plaintiff alleges that defendant

wrongfully converted

property of the plaintiff of her own
use in that she intentiona lly acquired and m

isused his semen wh

ich the parties ha

d expressly agreed would be disposed of without conception. E. Intentional Infli

ction of Mental Dis

tress Plaintiff alleges that afte

r the child was bor

n, the defendant

, while having sole custody, refused to allow the plaintiff to take the child to visit plaintiff ’s terminally ill father. The plaintiff also alleges that defendant communicated with plaintiff’s w

ife and parents

during the pregnancy and early weeks of the child’s life, making it more difficult for plaintiff’s famil y relationships. The complaint seeks damages in the amount of $84,000.00 for the amount of plaintiff’s future obligation of child support, and prenatal and natal medical and other costs of the defendant. It also seeks $50,000.00 for violation of plaintiff’s right to choose to not procreate. Pla intiff also seeks $100,000.00 for the loss of dominion and control of his sper m whic h defendant converted to her own use, and $10,000.00 for the intentional inflic tion of extreme mental distress.4 Defendant

filed a motion to dism

iss the complaint for failure to state a claim upon which relief can be granted and subsequently filed an answer to the complaint which adm i tted their intimate relationship but denied the other material allegations. The case was tried by the court without a jury and at the conclusion of the trial, the trial court entered an order of judgment for defendant finding that there was no fraud committed, there was no breach of an express co

ntract, there was no act of

conversion, there was no infliction of emotional distress upon the plaintiff. Although the order

further provided that the complaint fails to state a cause of action on which relief can be granted t

he order specif

ically stated that plaintiff’s complaint alleging the various
causes of action “is denied on the merits.” Plaintiff has appealed and presents the f

ollowing six issues as stated in his brief:

1. Whether Tennes see law regard ing the right to

not procreate, as recognized

by the Tennessee Supr eme Court, is available to a male in any circumstance other than in vitro fertilization. 2. Whether the right not to procreate can be secured under the principles of contract or tort law by making an agreement with another party when the pa

rties a r e contemplating production of gametes through sexual activity. 3. Whether, under contract law, Te nnessee provides a cause of action for recovery of da

mages for a male

whose right to choose to not procreate is violated by a sexu al partner who ma terially misrepresents

to him her complianc

e with such an agreeme

nt, and her state of fertility

during the sexual r

elatio nship, thereby i nducing him to continue the sexual relationship with taking contraceptive measures on his own, thus proceeding to make him a father, in viola

tion of his express

ed wishes. 4. Whether the facts of this case s how, as a matter of law, a breach of such agreement, thus v

iolating Henson’s r

ight not to procreate, and show damages, as a matter of l aw, wer e the proximate

result of such a breach, and a re qu antifiable and recoverable. 5. Whether public po

li cy interests of the State conflict with the in terests of Henson, and whether such conflicting interests, a s a matter of law, outweigh the interests of Henson. 6. Further, if such damages are recognized, is the female, by her successful achievement of parenthood, immunized from compensating the male for his injury as a result of her breach? Is this a circumstance where Tennessee imposes an exception to the common law actions of breach, fraud, or conversion which denies the father any r

ight to recover pr

oven injuries? As noted, the trial court found that defendant did not commit any fraud or conce alment, that there was no agreement betw een the parties a

s alleged, there

was no conversion

of property2 This scenario seems to be quite frequent in what some commentators describe as “sexual fraud.” One scholar writes, “[a] frequent fact pattern in sex fraud cases is whe re one sexual partner falsely claims to be infertile or to beusing birth control. If a child is subsequently born, does the defrauded p

arty have a cause of

action? I have f

ound no cases holdi

ng for plaintiffs i

n these circumstances.” Dan Subotnik, “Sue Me, Sue Me, What Can You Do Me? I Love You”-- A Diquisition on Law, Sex, and Talk , 47 Fla. L. Rev. 311, 409 (1995)(citations omitted). 5 as alleged, nor was there any infliction of mental distress as alleged. Plaintiff simply did not carry his burden of proof as to any of the alleged causes of action. Th ere was no proof concerning any express agr eement between

the parties,

nor was there any proof concerning the promise by defendant to provide for contraception. The conversion claim likewise fails for lack of proof of any agreement regarding the disposal of the semen. As to the infliction of mental distress, the record presents no proof of any emotional distress on the part of plaintiff resulting from the failure

of grandparent

visitation. Any con

flicts in the testimony must be resolved by the trial court

as the credibility of

witnesses rests in

the first instance

with the trial cour

t and will be given great weig

ht by the appellate

court. Haverlah v. Memphis Aviation , 674 S.W.2d 297, 302 (Tenn. App. 1984) . Since this case was tried b

y the court sitting w

ithout a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13 (d). From our review of the record, we conclude that the evidence does not pre ponderate aga inst the findings of the

trial court. Howe

ver, since the tr

ial court stated th

at plainti ff’ s complaint did not state a claim upon which relief can be granted, and plaintiff’s issues for review peripherally ad

dressed that find

ing, we will addre

ss that issue on appe

al. Although we are not aware of any Tennessee cases direc tly on point, our research has revealed numerous cases from other jurisdictions with essentially the same set of facts alleged by Henson. In s

o m e j uri sdi c t i ons, t he fat her has at t e m p t ed t o use t he m o t her’ s false represe

ntati o n s as a de fen s e t o suppo r t cl a i m s but w i t hou t success . Erwin L.D. v. Myla Jean L. , 847 S. W
. 2d 45 ( A r k .A pp.1993) ; Faske v. Bonanno ,

357 N
. W
. 2d 860 ( M i ch. A pp.1984) ; L. Pamela P. v. Frank S. , 449 N
. E . 2d 713 ( N

. Y
.1983) ; Hur v. Virginia Dept. of Soc. Serv. Div. of Child Support Enforceme nt , 409 S. E . 2d 454 (

V a . A pp. 1991)
.Su i t s s uch as t he case at bar i n w h ich t he fat her at t e m p t s t o recover dam ages from the m othe r be c a use of false
r epr e s ent a t i ons concerni ng b i r t h con t rol al so hav e been uni ver s a l l y r e ject ed pr i m a r i l y on t he bas i s of publ i c pol i cy. 2 See Stephen K. v. Roni L. , 164 C a l
.R p t r .618 ( 1980) ; Welzenbach v. Powers , 660 A
. 2d 1133 ( N
. H
.1995) ;6

C.A.M. v. R.A.W. ,

568 A
. 2d 556 ( N
. J . 1990) ; Jose F. v. Pat M. ,

586 N
. Y
. S . 2d 734 ( N .

Y . S u p .C t .1992) ; Smith v. Price ,

328 S. E . 2d 811 ( N

. C
.A pp.1985) ; Mo orman v. Walker ,

773 P. 2d 887 (

W a s h .A pp.1980) ; Linda D. v. Fritz C. ,

687 P. 2 d 223 ( W a s h .A pp.1984)
. See also A

nne M
.Pay ne, Sexual Partner’s Tort Liability to other Partner for Fraudulently Misrepresentation Regarding Sterility or Use of Birth Control Resulting in Pregnancy , 2 A
. L . R
. 5 t h 301 ( 1992)
. Although the opinion of our Supreme Court in Smith v. Gore , 728 S.W.2d 738 (Tenn. 1987) involved a medical malpractice case for wrongful pregnancy or conception, we perceive the reasoning of the Court to be equally applicable to the case at bar. In Smith, a 25 -year old female had a tubal ligation, but subsequently became pregnant and gave birth to a heathy, normal baby boy. She sued the doctor who performed the procedure, the hospital, and the manufacturer of the materials

used. She alleged

that the doctor an

d hospital were ne

gligent, and her c

laim against the manufacturer was predicated on failure to warn and breach of warranty. She sought recovery of

damages for emotional distress, loss of income, medical expenses, and the expenses of rearing the child to majority. The trial court denied the defendant’s motion to dismiss the case for failure to state a claim for recovery of expenses of rearing a normal, hea lthy child. The Court of Ap peals reversed, holding that the damages were limited to those immediately related t o pregnancy and the birth of the child. The Supreme

Co u rt affirmed the Court of Appeals and remanded the case for further proceedings consistent with its opinion. The Court noted that the case involved an ordinary tor t action and that plaintiff had suffered a for

eseeable conse

quence that she h

ad sought to avoid

by having the operation. The question to be resolved wa s the scope of the d

ama ges recov erable by the plaintiff and “[t]he question then becomes whether the legal cause of Plaintiff’s injury (i.e., the necessity to support her fifth child) can b

e considered to b

e the acts or omi ssion s of Defendants.” Id . at 749. The Court said: As Prosser further observed, the determ inatio n of the extent of liability and legal causation ines c apably involves notions of public policy. Torts (4th ed. 1971), § 3, at 14-15; § 42, at 244. The relationship of legal causation to the extent of damages must be analyzed carefully in this case. The Restatement Secon

d of Torts, § 431, sta

tes: “The actor’s neglige

nt conduct is a

legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of l aw rel ieving the actor f rom liability7 because of the manner in which his negligence has resulted in the harm.” (Emphasis added.) Thus, if some de finable policy relieves Defendants of the responsibility for the otherwise foreseeable consequences of the failedpregnancy avoidance technique, then they cannot be hel d liable for the rearing expenses of Plaintiff’s health child. Id. The Courtthen noted the nume rous Tennessee s

tatutory enactme

nts concerning pa

rents’ obligations for the support of their children, including a father’s obligation to support children born out of wedlock, discussing these provisions extensively, the Court then said:

Although Plaintiff has alleged a n ordinary common law tortand, if successful, may recov erdamages for the f oreseeable consequences of the to rtious injury, as Section 431 of the Restatement

Second of Torts provides, the manner in which the harm (i.e., the birth of

a normal child who

must be supported until at least the age of m

ajority) resulte

d li mi ts Defendants’ li

ability for the support of this child because legislative enactment of such comprehensive statu to ry schemes controlling child custody and support demonstrates tha t the public policy of Tennessee is that the obliga t ion for support of m inor children is a

ffirmatively placed on the parents of

the children. The fact that a normal child is the result of a failed pregnancy avoidance technique w ill not shiftthis responsibility

from the parents

to the defendant in such a case. Application of general common law principles o f tort recovery is not appropriate i n this case becau

se both the common law itself and statutory law have specifically established responsibility

for the support of children. If this responsibility is to be shifted away from the parents, such a determination is fo r the Legislature and not the Judiciary. Significant and farreaching questions of social policy a re i nvolved, “and it is the prerogative of the General Assembly to declare the policy of the Statetouching the general welfare.” Baptist Mem. Hos p. v. Couillens, supra, 176 Tenn. at 311-312, 140 S.W.2d at 1093. We conclude that in a wrongful pregnancy action the law relieves t hese Defendant s of liability for the otherwise fores

eeable consequences of the failed pregnancy avoidance technique to the extent that the obl

igation to support minor child

ren clearly re

sts upon t h e parents. The responsibility for support of Plaintiff’s fifth child rests with Plaintiff and the father of this ch ild. The laws of the State will assist Plaintiff i n a ssuming this responsibility. In view of the nature of the injury to Plaintiff and the numerous, complex andcompeting social policies involved, the firmly established c o mmon law and statutory obligation of parents to support their childr en is not shifted as a result of the tortof wrongfu l p regnancy. Defendants’ negligence cannot be considered

the legal or proximate cause of the damages incurred by Plaintiff for the support of her norm al, healt hy child in the circumstances of

this case. The extent of recovery is thus limited to those damages imme

diately flowing from the failed pregnancy avoidance technique. Id. at 750-51.8 Although the alleged actions of the defe ndant in the case at bar are intentional, as opposed to the allegedly negligence acts in Smith , we find no discer nable difference in

the legal obligatio ns imposed. In Smith , an attempt was made to shift the parents’ responsibility t o defendants,

and in the present

case the attempt is made to shift one parent’s re

sponsibility totally to the other pa

rent . By analogy with Smith , we conclude that in a case where a party seeks damages resulting from a mi srepresentatio

n concernin

g concept ion, the law relieves the defendant of liability for

the otherwise

foreseeable c

onsequences of t

he sexual interc

ourse “to the extent that the obl

igation to support minor children clearly rests upon the parents.” Id . As in Smith, the extent of rec overy would be limit

ed to those damage

s immediately

flowing from the defendant’s wrongful conduct. Id. The concurrence a

nd dissent states tha

t an inference m

ay be drawn from

the majority opinion that a part y such a s Henson may recover damages immediately flowing from the wrongful conduct as provided for in Smith v. Gore , 728 S.W.2d 738 \(Tenn. 1987). It points out that payment of expens es for pregnancy and child birth is addressed in T.C.A. § 36-2-311 (a)(13), and we have no disagr eement with that sta

tement. We do note, howev er, that the statut

e referred to provides that the court make a “determination of liability for a mother’s reasonable expenses for her pregnancy, confinement, and recovery to either or both parties .” T.C.A. § 36- 2-311 (a) (1 3) (emphasi s added). This sta tutory provision wa

s enacted by the le

gislature in Chapter 477, Public Acts

of 1997. This Act, a

mong other provisio

ns, repealed T.C.A. § 36-2- 102, which specifically provided that a father of a child born out of wedlock is liable for, among other thing, the expenses of the mother’s confinement and recovery. It seems significant that the legislature abandoned this mandatory provision concerning expenses and substituted in its place a provision for a c

ourt determinatio

n of liability to eithe

r or both parents. The Smith Cou rt premised its decision on the common law and statutory provisions obl igating both parents for t he support of minor

children. Althoug

h changing the ma

ndator y obligation of the father to pay for expenses, the legislature did not change the provi sions of T.C.A. § 34-11 -102 (a)(1997) obligating both parents for the support of minor children. We consider there to be a distinct difference between the parents’ obligation of support as required by T.C.A. § 34-11-102

(a) and the discr

etionary assessm

ent of medical ex

penses incurred

with9

a birth as provided for in T.C.A. § 36-2-311 (a)(13). The costs of confinement and the expenses incurred in connection withthe maternity are obliga tions incurred, not by the child, but by the party involved. However, the obligation o f support under the common law and by statute is an obligation owed to the child. The Court in Smith was very careful to state the basis for its decision:

Rather than ground our deci s ion on abstract not ions of public policy, we rest our holdin g limiting Defenda

nts’ liabilit

y in this case on two grounds: (1) that the State of Tennessee imposes by statut e the responsibility for the support of children upon the par ents, thereby relieving Defendants of the liability for th e support of Plaintiff’s hea

lthy child, and (2)

considering not on

ly the extensive statutory law regarding the obli gation to support, butin light of

both the common law

obligation to

support and this Court’s restricted r ol e in declaring public policy, shifting the common law and statutory ob ligation from the pa rents to defendant in such cases as these must be left to legislative action. 728 S.W.2d at 745. There is no d oubt that matters involving intimate relations between the parties are essentially

very private affairs. Notwithstanding that fact, we do not feel that in a case alleging fr au d and misrepresen

tation where lega

l causation can be

proven (which is n

ot the case as to parental support) this Court s hould not attempt to e

stablish a rule to pr

eclu d e such a cause of action. To do so would, of course, equally affect the situation w h ere the female of the liaison had a cause of action for fra ud or misrep resentation and sued for expenses incurred for the avoidance of the pregnancy and any physical pain and sufferi

ng as a result

thereof. We simp

ly feel that until the legislature speaks on this matter, the common law rights resulting from fraudulent

misrepr esentat ion should not be abolished in an appropriate case where legal causation can be shown. The judgment of the trial court is affirmed. Costs of the appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE10

SEPARATELY CONCURS A ND DISSENTS: HOLLY KIRBY LILLARD, JU DGE