McPherson v. McPherson

Citations: 1998 ME 141; 712 A.2d 1043; 1998 Me. LEXIS 218

Court: Supreme Judicial Court of Maine; June 5, 1998; Maine; State Supreme Court

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Nancy McPherson appealed the Superior Court's judgment denying her claims of negligence, assault and battery, and negligent infliction of emotional distress against her ex-husband, Steven McPherson, for allegedly infecting her with Human Papilloma Virus (HPV) acquired through an extramarital affair. Steven cross-appealed, disputing certain factual findings. The court's factual findings indicated that Nancy had been infected with HPV and that it was more likely than not that she contracted it through sexual contact with another individual. However, it was also found that Steven was Nancy's only sexual partner, and it was likely he transmitted the virus to her, despite showing no symptoms at the time. The court noted Steven's lack of knowledge regarding his potential infection and found he had a sexual relationship with another woman without informing Nancy and took no precautions to prevent transmission.

The court ruled that under Maine law, there is no legal duty for sexual fidelity in marriage that could constitute negligence, thereby dismissing Nancy's negligence claim and, consequently, her claim for negligent infliction of emotional distress. Furthermore, it concluded that the sexual intercourse that led to Nancy’s infection was consensual, negating the assault and battery claim, and determined Steven's actions did not constitute intentional infliction of emotional distress. Nancy appealed all conclusions except that regarding intentional infliction of emotional distress. The judgment was affirmed for both parties.

Steven's challenge to the court's factual findings regarding the infections of HPV is dismissed, as the court's determinations are supported by credible evidence and not clearly erroneous. The review standard for factual findings is whether they are based on a clear misapprehension of evidence or lack credible support. The court then addresses Nancy's claim of negligence due to the transmission of a sexually transmitted disease, a matter that is being considered for the first time in Maine. Case law from other jurisdictions has established a cause of action for the negligent transmission of sexually transmitted diseases. The opinion references Chief Justice Cardozo's view that negligence should entail liability for all consequences resulting from a breach of duty. The court concludes that there is no principled reason to exclude disease transmission from negligence claims. To succeed in a negligence case, a plaintiff must prove that the defendant owed a duty, breached that duty, and caused injury. The court acknowledges that the primary legal question is whether Steven had a duty to protect Nancy from such infections.

Nancy asserts that there is a duty of sexual fidelity in marriage and that a breach leading to physical harm is actionable. However, courts have consistently ruled against this position, emphasizing the requirement for a person with a contagious disease to take steps to prevent its spread, with liability arising only if the defendant had knowledge of the disease. In the context of negligent transmission of sexually transmitted diseases, a duty exists for individuals who know or should know they are infected to either abstain from sexual contact or warn potential partners. This court reaffirms the necessity of knowledge or reasonable foreseeability for establishing negligence.

In this case, the court found that Steven was unaware of his HPV infection when he had sexual intercourse with Nancy, and she does not contest this finding. Consequently, Steven did not breach any legal duty and cannot be held liable for negligence or for negligent infliction of emotional distress. 

Regarding Nancy's assault and battery claim, the court ruled that the sexual intercourse was consensual. Nancy contends that her consent was undermined by Steven's failure to disclose his extramarital affair. However, consent can only be invalidated by substantial misrepresentation affecting the nature of the conduct or expected harm. Since the court found that Steven was unaware of his infection, Nancy's argument does not hold, and thus Steven cannot be liable for assault and battery. The judgment is affirmed.