McPherson v. McPherson
712 A.2d 1043 (1998)
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Rule of Law:
A person has a legal duty to prevent the transmission of a sexually transmitted disease to a sexual partner only if they know or should know that they are infected with the disease.
Facts:
- Nancy McPherson and Steven McPherson were married.
- Steven McPherson engaged in an extramarital affair with an individual identified as Jane Doe.
- After having sexual intercourse with Jane Doe, Steven had sexual intercourse with his wife, Nancy.
- Steven did not disclose his affair to Nancy and took no steps to protect her from a possible sexually transmitted disease.
- Nancy, who had only ever had Steven as a sexual partner, was subsequently infected with Human Papilloma Virus (HPV).
- At the time he infected Nancy, Steven had no physical symptoms of HPV, no knowledge that any partner had symptoms, and had not been medically diagnosed with any sexually transmitted disease.
Procedural Posture:
- Nancy McPherson filed a complaint against her ex-husband, Steven McPherson, in the Maine Superior Court (Oxford County), a trial court.
- The complaint included claims for negligence, assault and battery, and negligent infliction of emotional distress.
- The case was tried before a judge without a jury (a bench trial).
- The Superior Court entered a judgment in favor of the defendant, Steven McPherson, on all claims.
- Nancy McPherson, as appellant, appealed the judgment to the Supreme Judicial Court of Maine, the state's highest court.
- Steven McPherson, as cross-appellant, challenged several of the trial court's factual findings.
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Issue:
Does a person owe a legal duty to a sexual partner to prevent the transmission of a sexually transmitted disease if the person did not know, and had no reason to know, they were infected?
Opinions:
Majority - Dana, J.
No. A person does not breach a legal duty to a sexual partner if they transmit a sexually transmitted disease without knowing or having reason to know they were infected. While Maine recognizes a cause of action for the negligent transmission of a sexually transmitted disease, liability requires a breach of duty. The court holds that a duty of care arises only when a person knows or should know they are infected. This standard aligns with established negligence principles requiring knowledge or foreseeability of harm. The trial court found as a matter of fact that Steven did not know and had no reason to know he had HPV. Therefore, he did not breach any duty owed to Nancy and cannot be held liable for negligence. Similarly, her consent to sexual intercourse was not vitiated for the purpose of an assault and battery claim because Steven was not aware of the harmful nature of the act and thus did not mislead her about the risk of harm.
Analysis:
This case establishes for the first time in Maine a cause of action for the negligent transmission of a sexually transmitted disease, aligning the state with numerous other jurisdictions. However, the decision significantly cabins this new tort by adopting a 'know or should have known' standard for the duty of care. This prevents the imposition of strict liability for transmission and grounds the analysis in traditional negligence principles of foreseeability. The ruling emphasizes that marital infidelity alone does not create liability; rather, liability hinges on the defendant's awareness of the specific risk of disease transmission. Future cases will likely focus on the factual question of what circumstances are sufficient to put a person on notice that they 'should have known' they were a carrier.
