Hogan v. Tavzel
660 So. 2d 350 (1995)
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Rule of Law:
A person's consent to sexual intercourse is vitiated and will not serve as a defense to a battery claim when their partner fraudulently conceals knowledge of having a sexually transmissible disease and subsequently infects them. Additionally, a judicial decision overruling a prior precedent applies retroactively unless the overruling opinion explicitly limits its application.
Facts:
- Carolyn Hogan and Mark Tavzel were married for fifteen years but separated due to marital problems.
- Between October 1989 and January 1990, the couple engaged in consensual sexual intercourse during a period of attempted reconciliation.
- At the time, Tavzel knew he was infected with genital warts (condylomhea acuminata).
- Tavzel did not inform Hogan of his condition and took no precautions to prevent transmitting the disease to her.
- Hogan was unaware of Tavzel's condition and became infected with genital warts as a result of their sexual contact.
- The couple divorced on May 8, 1990.
Procedural Posture:
- Carolyn Hogan sued her ex-husband, Mark Tavzel, in a Florida trial court, alleging claims for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress.
- Tavzel filed a motion to dismiss Hogan's complaint.
- The trial court granted the motion and dismissed Hogan's second amended complaint with prejudice.
- Hogan, as appellant, appealed the trial court's dismissal to the District Court of Appeal of Florida, Fifth District, with Tavzel as the appellee.
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Issue:
Does a person's consent to sexual intercourse bar a battery claim when their partner, knowing they have a sexually transmitted disease, fails to disclose that condition and subsequently infects them?
Opinions:
Majority - W. Sharp, Judge
No. A person's consent to sexual intercourse does not bar a battery claim where their partner fraudulently conceals having a sexually transmitted disease and infects them. The court reasoned that consent to sexual intercourse is not equivalent to consent to be infected with a venereal disease. Relying on the Restatement of Torts and the majority view in other jurisdictions, the court held that consent is ineffective if the consenting person is mistaken about the fundamental nature and quality of the intended invasion. Fraudulent concealment of a known STD vitiates consent, transforming the harmful contact into an unconsented-to touching sufficient to constitute a battery. The court also held that the Florida Supreme Court's abrogation of interspousal immunity in Waite v. Waite applies retroactively, as the general rule is that judicial decisions apply retrospectively unless explicitly limited to prospective application.
Analysis:
This decision established for the first time in Florida that the transmission of a sexually transmitted disease can be the basis for a battery claim, aligning the state with the majority of U.S. jurisdictions. The ruling clarifies that for consent to be a valid defense to an intentional tort, it must be informed consent regarding the essential character of the contact. By holding that fraudulent concealment of an STD negates consent, the court created a significant precedent for personal injury liability in intimate relationships, imposing a duty of disclosure on individuals who know they are infected. This case also reinforces the default rule of retroactive application for judicial decisions that overturn existing legal doctrines unless the court expressly states otherwise.
