May 17, 2005
New Case for My Torts Class
Posted by Christine Hurt

I usually teach "assumption of the risk" by using what I thought were interesting cases:  hockey cases, baseball cases.  But I think a case decided yesterday beats these cases.  Can a male sex partner sue his female sex partner for injuries (penile fracture) caused by her negligent abrupt change of position?  (At this point, my mother is saying, "We sent her to law school so she could talk about this??)

Eugene Volokh posts today on a new Massachusetts case in which the court held that sex partners generally have no duty of reasonable care to one another with regard to negligent actions. 

Although the court follows most states in determining that there lies no duty to use reasonable care in this activity, the policy behind assumption of the risk cases is that persons engaging in the activity know that even if everyone uses due care, some injuries could arise.  In a soccer game, even if everyone follows the rules or even violates them in a foreseeable way, someone could get hurt.  In some states, the court still holds that there is a duty, but takes into account the circumstances of the activity.  The result seems to be the same.

This case would not have any bearing on STD cases, which have been around for a long time.  Generally, those cases are brought as battery cases, so some sort of knowledge of the STD is required.  I do not know of a case of simple negligence involving transmission of an STD.

Interestingly, the court mentions that the policy behind sports assumption of the risk ("no duty") cases is that if everyone involved in a sport had a duty to use reasonable care to one another, then that might have a chilling effect on sports participation.  The court did not reiterate that policy with regard to sexual activity, though!

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Comments (5)

1. Posted by Eric Goldman on May 17, 2005 @ 10:34 | Permalink

I'd be curious what kinds of discovery requests were made in this case...


2. Posted by Kaimi on May 17, 2005 @ 11:04 | Permalink

or what kinds of expert witness the parties called . . .


3. Posted by PG on May 17, 2005 @ 16:27 | Permalink

Would discovery or experts be necessary at the summary judgment point, since that requires the court to assume all facts in the plaintiff's favor?


4. Posted by SupremacyClaus on May 18, 2005 @ 13:51 | Permalink

This is an actual tort. It was not deemed a tort by the judiciary.


5. Posted by chiropractor Geelong CBD back pain on January 6, 2012 @ 1:56 | Permalink

Does anybody have an update on this?

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