Thursday, May 01, 2008

Sex =/= a legal duty of reasonable care

A friend sent me this: Roe v. Moe, 27 N.E.2d 240 (Mass. App. Ct. 2005).

"
Male partner brought action against female partner, seeking recovery for serious physical injury he suffered during consensual sexual intercourse with female partner, during which his penis was fractured, requiring emergency surgery. Female partner brought motion for summary judgment. The Superior Court Department, Essex County, Thomas P. Billings, J., granted motion. Male partner appealed."

Held

First, in a matter of first impression, female partner owed male partner no legal duty of reasonable care during their consensual sexual encounter, and,
Second, female partner's conduct during consensual sexual encounter with male partner was not wanton or reckless, as necessary for male partner to establish claim to recover damages for his physical injury against female partner.

Also of interest (WL headnote): Female partner owed male partner no legal duty of reasonable care during their consensual sexual encounter, during which female partner changed her position and landed awkwardly on male partner, resulting in male partner suffering penile fracture, thus precluding male partner's negligence claim against female partner.

Doesn't changing one's position as a result of reliance on another's movement = estoppel? Isn't there a minimum standard of quality inherent in such encounters? OK, we'll stop . . .

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