Wave Maker: "Hey Moe!"

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Wednesday, May 18, 2005

"Hey Moe!"

I've been thinking more about the infamous "negligent sex" case, Moe v. Doe, and I agree with Professor Volokh.

What bothered me about the case was that a man would sue his lover for something that happened during an act of such intimacy -- unless she did not object. As Volokh points out, the injury would likely be one that she would be insured for, under the personal liability endorsement of either a standard homeowner's or tenant's policy. It would not be fraudulent, necessarily, as the injury is (most certainy) real.

Volokh makes the excellent point that "the prospect of litigation involving experts on how reasonable people have sex , debates about how sexually expert we should expect the reasonable person to be, attempts to reconstruct exactly who moved how and why, and jury verdicts about how the Reasonable Sexual Partner would have had Reasonable Sex boggle the mind." I agree entirely.

But the case raises another sore spot with me, and that is the absence of the affirmative defense of "assumption of risk." In the former common law, a person who engaged in an activity that a reasonable person should have know would be potentially dangerous, assumed the risk of injury, and thereby completely absolves the negligent party (but not necessarily the reckless or intentional party) of liability. Thus, a hockey player could not sue his opponent for hitting him in the mouth with a puck (an actual case).

This affirmative defense fell by the wayside in most jurisdictions as liability insurance became available and the concept of comparative negligence took hold. With comparative negligence, the fact finder would be responsible for apportioning the relative degree of fault between the parties, and the party liable (50%+)would pay only his share. If the fact finder found the plaintiff more than 50% at fault, he could not recover. This works fine in most instances, except where multiple parties are involved, in which case you could have a situation where one defendant could be adjudged 10% negligent and another defendant 41% negligent, and the plaintiff 49% negligent -- yet the plaintiff would recover against both defendants. If the majority defendant were judgment proof, the 49% negligent plaintiff could recover 51% of his damages from the 15% defendant --how's that fair?.

While the application of multiple-party comparative negligence to the issue of sex is intriguing, I shall resist.

I mean only to point out that the Moe v. Doe case is another fitting example of where assumption of risk could have been rather neatly applied -- if one accepts that, in this day and age where couples are freely enabled to engaged in their own gymnastic interludes, sexual activity can be deemed inherently dangerous?

Posted by: Wave Maker / 2:21 PM/ |