Just Playin'
Random Thoughts...
Monday, July 11, 2005

For those of you, like Kelly, who might need a refresher course on basic tort law, you should look no further than the recent Massachusetts case of Doe v. Moe, 827 N.E.2d 240 (Mass. App.2005 Mass.)

The court ruled that a female partner owed her male partner no legal duty of reasonable care during their consensual sexual encounter where the female partner changed her position and landed awkwardly on the male partner, resulting in the male partner suffering a penile fracture.

The appellate court determined that before liability for negligence can be imposed it must first be established that the defendant owed the plaintiff a legal duty of care which is "to be determined by reference to existing social values and customs and appropriate social policy." In determining that no such duty existed, the court said that "(i)n 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."

The court went further by stating that "(w)hile 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 court found no such conduct in this case and affirmed the dismissal.

An interesting read and I think I'll pass this on to Professor Klein.

And how is that for my first post....


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