Hogan v. Tavzel
660 So. 2d 350 (Fla. Ct. App. 1995)
Tort Law
PROCEDURAL HISTORY: Appellant ex-wife challenged a final judgment from the Circuit Court (Florida), which dismissed her second amended complaint with prejudice against appellee ex-husband for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress for infecting her with a sexually-transmitted disease.
FACTS:
-Appellant ex-wife (Plaintiff) challenged the dismissal of her complaint against appellee ex-husband for negligence, battery, fraudulent concealment, and the intentional infliction of emotional distress. -The wife (P) and (ex)husband (D) separated after 15 years of marriage.
-During a period of attempted reconciliation, husband (D) infected P with genital warts.
-Husband (D) knew of his condition but failed to warn his wife (P) or take precautions against infecting her.
-The trial court dismissed appellant's complaint based on interspousal immunity and lack of recognition of the tort of battery for consensual sex resulting in the transmission of a sexually-transmitted disease. The appeals court reversed.
HOLDING
A tortfeasor can be liable for battery for infecting another with a sexually transmissible disease.
ANALYSIS
-The Waite decision abrogated the doctrine of interspousal immunity.
-Nothing in the decision limited it to prospective application. Thus, the counts of negligence, fraudulent concealment and intentional infliction of emotional distress should not have been dismissed as barred by interspousal immunity.
RULES
-Fraudulently induced consent is the equivalent of no consent.
-Consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease.
CONCLUSION: The court reversed a judgment dismissing appellant's second amended complaint for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress and remanded because her suit was not barred by interspousal immunity, and the court recognized a tort of battery for sexually transmitted disease.
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660 So. 2d 350 (Fla. Ct. App. 1995)
Tort Law
PROCEDURAL HISTORY: Appellant ex-wife challenged a final judgment from the Circuit Court (Florida), which dismissed her second amended complaint with prejudice against appellee ex-husband for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress for infecting her with a sexually-transmitted disease.
FACTS:
-Appellant ex-wife (Plaintiff) challenged the dismissal of her complaint against appellee ex-husband for negligence, battery, fraudulent concealment, and the intentional infliction of emotional distress. -The wife (P) and (ex)husband (D) separated after 15 years of marriage.
-During a period of attempted reconciliation, husband (D) infected P with genital warts.
-Husband (D) knew of his condition but failed to warn his wife (P) or take precautions against infecting her.
-The trial court dismissed appellant's complaint based on interspousal immunity and lack of recognition of the tort of battery for consensual sex resulting in the transmission of a sexually-transmitted disease. The appeals court reversed.
HOLDING
A tortfeasor can be liable for battery for infecting another with a sexually transmissible disease.
ANALYSIS
-The Waite decision abrogated the doctrine of interspousal immunity.
-Nothing in the decision limited it to prospective application. Thus, the counts of negligence, fraudulent concealment and intentional infliction of emotional distress should not have been dismissed as barred by interspousal immunity.
RULES
-Fraudulently induced consent is the equivalent of no consent.
-Consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease.
CONCLUSION: The court reversed a judgment dismissing appellant's second amended complaint for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress and remanded because her suit was not barred by interspousal immunity, and the court recognized a tort of battery for sexually transmitted disease.
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