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 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
