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McPherson v. McPherson
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 141
Docket:	Oxf-97-327
Argued:	January 5, 1998	
Decided:	June 5, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.




NANCY A. McPHERSON v. STEVEN W. McPHERSON


DANA, J.

	[¶1]  Nancy McPherson appeals from the judgment of the Superior
Court (Oxford County, Saufley, J.) denying her claims for negligence, assault
and battery, and negligent infliction of emotional distress.  These claims
arise from her claim that her husband, Steven McPherson, infected her with
a sexually transmitted disease he acquired through an extramarital affair. 
Steven cross-appeals, contending that three of the court's factual findings
are not supported by the evidence.  We disagree with both parties'
contentions on appeal and affirm the judgment.
	[¶2]  Nancy filed a complaint against Steven, after their divorce,
claiming that he had infected her with a sexually transmitted disease,
Human Papilloma Virus (HPV).  Nancy alleged that Steven acquired HPV
through a clandestine extramarital affair with Jane Doe.  The complaint
further alleges that Steven transmitted the disease to her, prior to their
divorce, through sexual intercourse.
	[¶3]  Following a jury-waived trial, the court made the following factual
findings:  that Nancy "has been and may still be infected with HPV"; that it
is more likely than not that she was infected with HPV through sexual
contact with another individual; that Steven was the only sexual partner that
Nancy has ever had; and that it was more likely than not that Steven
infected Nancy with HPV.  The court also noted that, even though Steven
did not then exhibit evidence of the HPV infection, "this is in no way proof
that he is not now in a latent stage nor does it demonstrate or have any
probative value as to whether or not he was a carrier" at the time he
allegedly infected Nancy.  The court found further that Steven had a sexual
relationship with Doe, that he had sexual intercourse with Nancy after
having intercourse with Doe, that he did not disclose his sexual relationship
with Doe to Nancy, and that he took no steps to protect Nancy from possible
infection with a sexually transmitted disease.  Finally, the court found that
Steven "did not know or have reason to know" that he might have HPV at
the time he infected Nancy because he had no physical symptoms of HPV
infection, he had no knowledge of any other partner having symptoms of
HPV, and he had no medical diagnosis of any kind of a sexually transmitted
disease.
	[¶4]  Addressing Nancy's theory of negligence -- that there is a duty to
be sexually faithful in marriage and that breach of that duty is actionable
where the breach leads to physical harm to the marital partner -- the court
found that this duty does not exist under Maine law.  Having found no
negligence on Steven's part, the court found that he could not be liable for
negligent infliction of emotional distress.  Regarding the assault and battery
claim, the court concluded that the intercourse between Nancy and Steven
from which she contracted HPV was consensual, and no assault and battery
occurred.  Finally, the court found that Steven's conduct did not rise to the
level of intentional infliction of emotional distress.  On appeal Nancy
challenges all of these conclusions except that relating to intentional
infliction of emotional distress.
	[¶5]  Addressing first Steven's challenge to the court's factual
findings, that issue does not warrant substantial discussion.  In particular,
Steven asserts that the court erred by finding that Nancy was infected with
HPV, that Steven was infected with HPV, and that Steven engaged in sexual
intercourse with Nancy after engaging in sexual intercourse with Doe. 
Contrary to Steven's contention that we should review these factual findings
de novo, we review factual findings only for clear error.  White v. Zela, 1997
ME 8, ¶ 3, 687 A.2d 645, 646.  "A trial court's factual determinations are
'clearly erroneous' only if there is no credible evidence on the record to
support them, or if the court bases its findings of fact on a clear
misapprehension of the meaning of the evidence."  Id., 687 A.2d at 646
(citation omitted).  There is credible evidence on the record that supports
all of the contested factual findings.  Thus Steven's challenge to these factual
findings is without merit.
	[¶6]  Turning to Nancy's novel theory of negligence, we must first
determine whether a negligence action may be based on the transmission of
a sexually transmitted disease, an issue of first impression in Maine.  Courts
have long imposed liability on individuals who have harmed others by 
transmitting communicable diseases.  See Berner v. Caldwell, 543 So. 2d
686, 688 n.1 (Ala. 1989) (surveying judgments from courts throughout the
nation imposing liability for transmission of communicable diseases).  
Further, courts throughout the United States have recognized a cause of
action for the negligent transmission of a sexually transmitted disease.  See,
e.g., Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993) (AIDS); Berner v.
Caldwell, 543 So. 2d at 686 (genital herpes); Kathleen K. v. Robert B., 150
Cal. App. 3d 992 (1984) (genital herpes); Long v. Adams, 333 S.E.2d 852
(Ga. Ct. App. 1985) (genital herpes); Meany v. Meany, 639 So. 2d 229 (La.
1994) (genital herpes);  Stopera v. DiMarco, 554 N.W.2d 379 (Mich. Ct. App.
1996) (HPV); M.M.D. v. B.L.G., 467 N.W.2d 645 (Minn. Ct. App. 1991)
(genital herpes); Maharam v. Maharam, 510 N.Y.S.2d 104 (N.Y. App. Div.
1986) (genital herpes); Crowell v. Crowell, 105 S.E. 206 (N.C. 1920)
(venereal disease); Mussivand v. David, 544 N.E.2d 265 (Ohio 1988)
(venereal disease); DeVall v. Strunk, 96 S.W.2d 245 (Tex. Civ. App. 1936)
(crab lice); Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863
(1979) (gonorrhea).
	[¶7]  In his oft-cited opinion in Palsgraff v. Long Island Railroad Co.,
162 N.E. 99 (1928), Chief Justice Cardozo wrote, "[N]egligence, not at large
or in the abstract, but in relation to the plaintiff, would entail liability for any
and all consequences, however novel or extraordinary."  Id. at 101 (citations
omitted).  We can conceive of no principled reason to distinguish the
consequence suffered here by Nancy, infection with a disease, from any
other physical harm that could befall a person because of the negligence of
another, and for which we would recognize a cause of action in negligence. 
Accordingly, we join the many courts throughout the nation who recognize a
cause of action for negligent transmission of a sexually transmitted disease.  
	[¶8]  To prevail in a negligence action, the plaintiff has the burden of
proving that the defendant owed a duty to the plaintiff, that the defendant
breached that duty, and that the plaintiff suffered an injury as a result of that
breach.  Gayer v. Bath Iron Works Corp., 687 A.2d 617, 621 (Me. 1996). 
Having already found Steven's challenge to the court's finding regarding
Nancy's injury to be without merit, the central issue here is whether Steven
owed Nancy a duty to protect her from infection with a sexually transmitted
disease.  The existence of a duty is a question of law, which we review de
novo.  Id.
	[¶9]  Nancy argues that there is a duty to be sexually faithful in
marriage and that breach of that duty is actionable when it leads to physical
harm to the marital partner.  Surveying the many courts that have addressed
this issue we find no support for Nancy's position.  Courts have consistently
held that "one who has a contagious disease must take the necessary steps
to prevent the spread of the disease."  Mussivand v. David, 544 N.E.2d at
269.  To be held liable in negligence for failure to take those steps, however,
"it must be proved that the defendant knew of the presence of the disease." 
39 Am. Jur. 2d Health § 48 (1968).  Courts dealing specifically with the issue
of negligent transmission of sexually transmitted diseases have refined this
standard.  In perhaps the most frequently cited recent case to deal with the
issue, Berner v. Caldwell, the Alabama Supreme Court held "that one who
knows, or should know, that he or she is infected with [a sexually
transmitted disease] is under a duty to either abstain from sexual contact
with others or, at least, to warn others of the infection prior to having
contact with them."  Berner v. Caldwell, 543 So. 2d at 689; see Meany v.
Meany, 639 So. 2d at 235; Mussivand v. David, 544 N.E.2d at 270; Lockhart
v. Loosen, 943 P.2d 1074, 1080 (Okla. 1997); Howell v. Spokane & Inland
Empire Blood Bk., 818 P.2d 1056, 1059 (Wash. 1991).
	[¶10]  This articulation of the duty standard is consistent with the
longstanding position of this court.  See generally MacDonald v. Hall, 244
A.2d 809, 814 (Me. 1968) ("The duty of taking care, . . .  presupposes
knowledge or its equivalent.  The knowledge may be actual or that with
which he is reasonably chargeable, by reason of events which could be
foreseen or reasonably anticipated."); American Lumber Sales Co. v. Fidelity
Trust Co., 127 Me. 65, 72, 141 A. 102, 105 (1928) ("There can be no
neglect to perform a duty unless the person sought to be charged with
negligence has knowledge of the condition of things which requires
performance at his hands.").
	[¶11]  Accordingly we hold that one who knows or should know that
he or she is infected with a sexually transmitted disease is under a duty to
protect sexual partners from infection.  The court found that Steven "did
not know or have reason to know" that he had HPV at the time he infected
Nancy.  Nancy does not challenge this factual finding.  Thus, Steven has not
breached any legal duty to Nancy and he cannot be held liable to her in
negligence.  Because Steven was not negligent, he also may not be held liable
for negligent infliction of emotional distress.
	[¶12]  Nancy also challenges the court's judgment with regard to the
assault and battery claim.  The court found that no assault and battery
occurred because the sexual intercourse between Steven and Nancy was
consensual.    She argues that her consent to have sexual intercourse with
Steven was vitiated by the fact that he failed to inform her of his extramarital
affair.
	[¶13]  "One who effectively consents to conduct of another intended
to invade his interests cannot recover in an action of tort for the conduct or
for harm resulting from it."  Restatement (Second) of Torts § 892A(1)
(1977).  Consent may be vitiated, however by misrepresentation;
	If the person consenting to the conduct of another is
induced to consent by a substantial mistake concerning the
nature of the invasion of his interests or the extent of the harm
to be expected from it and the mistake is known to the other or
is induced by the other's misrepresentation, the consent is not
effective for the unexpected invasion or harm.
Id. § 892B(2).  By way of illustration, the Restatement provides: "A consents
to sexual intercourse with B, who knows that A is ignorant of the fact that B
has a venereal disease.  B is subject to liability to A for battery."  Id.
§ 892B(2) cmt. e, illus. 5.
	[¶14]  Nancy argues only that Steven misled her concerning his
fidelity.  Given the court's finding that Steven neither knew nor should have
known of his infection with HPV, however, Nancy cannot argue that Steven
misled her "concerning the nature of the invasion of [her] interest or the
extent of the harm to be expected" therefrom.  If the defendant, ignorant of
the fact that he was infected with a sexually transmitted disease, has sexual
intercourse with the plaintiff, "the defendant will not be liable, because the
plaintiff consented to the kind of touch intended by the defendant, and both
were ignorant of the harmful nature of the invasion."  Prosser & Keeton, The
Law of Torts § 18 at 119 (5th Ed. 1984); see Hogan v. Tavzel, 660 So. 2d
350 (Fla. Dist. Ct. App. 1995).  Thus, Steven may not be held liable for assault
and battery.
	The entry is:
					Judgment affirmed.
                   
Attorney for plaintiff: Edward S. David, Esq., (orally) Joyce, Dumas, David & Hanstein, P.A. P O Box 31 Farmington, ME 04938-0031 Attorneys for defendant: Karen E. Lipman, Esq., (orally) Sumner H. Lipman, Esq. Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04330-1051