Hogan v. Tavzel
660 So. 2d 350 · District Court of Appeal of Florida · 1995
Facts
Carolyn Hogan sued her former husband, Mark Tavzel, for infecting her with genital warts during consensual sex, which he knew he had but failed to disclose. The trial court dismissed her claims, citing interspousal immunity and lack of a battery claim for STD transmission from consensual sex. Hogan appealed the dismissal of her negligence, battery, fraudulent concealment, and intentional infliction of emotional distress claims.
Issue
1. Is the Florida Supreme Court's abrogation of interspousal immunity retroactive? 2. Can a battery claim arise from consensual sexual intercourse when one partner knowingly transmits a sexually transmitted disease without disclosure?
Holding
The appellate court reversed, holding that the abrogation of interspousal immunity is retroactive, allowing Hogan's claims for negligence, fraudulent concealment, and intentional infliction of emotional distress. It also held that consent to sex does not equate to consent to STD infection, thus a battery claim can proceed if the infecting partner knew and failed to warn.
Rule
The abrogation of interspousal immunity by the Florida Supreme Court is retroactive unless specifically limited to prospective application. Consent to sexual intercourse is vitiated, and a battery claim can be sustained, when one partner knowingly transmits a sexually transmitted disease without disclosing their condition.
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