Tuesday, May 17, 2005

The Agony of Defeat

More than enough jokes have been raised (heh) about the fractured penis story already, so I'll resist the temptation to invent another cruel pun. Apart from the obvious humor the story generates, the decision makes some interesting observations.

The (purported) basis for the unfortunate gentleman's lawsuit is that his partner was negligent in the (ahem) manner that she engaged in their activity, and her negligence resulted in injury to him. For a cause of action in negligence to lie, she has to owe him a "duty of care," violate that duty of care; and the violation of the duty has to result in reasonably forseeable injury to the plaintiff.

So the dilemma faced by the Appeals Court is whether, and how, to apply ordinary standards of negligence to consensual sexual activity between adults.

Here is how Judge Trainor addressed the issue:

The Supreme Judicial Court has held that, while reasonable care is the duty owed in most circumstances, there are exceptions to this general principle, although "only strong arguments of public policy should justify a judicially created immunity for tortfeasors and bar to recovery for injured victims." Lewis v. Lewis, 370 Mass. 619, 629 (1976). Pursuant to this rationale, Massachusetts has recognized a limited number of circumstances in which, while all other legal requirements of negligence are satisfied, the imposition of a duty has been determined to be inappropriate or unworkable. See, e.g., Schofield v. Merrill, 386 Mass. 244, 245 (1982) (affirming traditional rule that landowner owes adult trespasser no duty of reasonable care); Gauvin v. Clark, 404 Mass. at 454 (recklessness, not negligence, is the standard upon which liability for injuries is determined between athletic participants); Wallace v. Wilson, supra (parent not responsible for injuries incurred by guest at underage drinking party, even though parent was aware of drinking); Cremins v. Clancy, supra at 292-293 (social host who has not provided liquor owes no duty of reasonable care to protect travelers on the highway from an intoxicated guest); Remy v. MacDonald, supra at 677 (expectant mother has no duty of care to refrain from negligently injuring her unborn fetus).We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. ...

Addressing a like issue in a different context, the Supreme Judicial Court recognized that "in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic" as prior precedent had suggested, it could no longer apply the statutory prohibition of G.L. c. 272, § 35, against "unnatural and lascivious" acts to private, consensual adult sexual conduct. Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974). There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. [FN5] In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to revolve a claim that certain consensual sexual conduct is undertaken without reasonable care. Compare Remy v. MacDonald, 440 Mass. at 678 ("No set of clear existing social values and customs exist, and no settled social policy can be identified, to justify the maintenance of the present lawsuit"); Conley v. Romeri, 60 Mass.App.Ct. 799, 801-803 (2004) (claims of negligent infliction of emotional distress and fraud unavailable because there was no legally defined duty or recognized standard of conduct between parties in a dating relationship). We conclude, therefore, that there was no legal duty of reasonable care owed by the defendant to the plaintiff during their consensual sexual conduct. ...

While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct. "The words 'wanton' and 'reckless' are ... not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Cohen v. Davies, 305 Mass. 152, 156 (1940) (indifference to consequences distinguishes wanton or reckless behavior from negligence). Since "[t]he essence of wanton or reckless conduct is intentional conduct ... which ... involves a high degree of likelihood that substantial harm will result to another," Commonwealth v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.

So then, in a nutshell, because "there are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior," the Court applies the same standard of conduct required during athletic events to that required by participants in consensual sex.

At the very least, this gives one opportunity to pause and reflect on the dangers of judicial activism.

Quite apart from this, I must confess that it is the bringing of such a lawsuit all the way to the Appellate level that makes me hesitant to divulge my profession.

Now if you'll excuse me, I have to put a bag over my head.

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