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Doe v. Moe5/16/2005
Essex.
November 20, 2003
Present: Laurence, Mills, & Trainor, JJ.
Negligence, Duty to prevent harm. Wanton or Reckless Conduct.
Civil action commenced in the Superior Court Department on September 23, 1997.
The case was heard by Thomas P. Billings, J., on a motion for summary judgment.
John Doe (plaintiff) appeals from a summary judgment entered in the Superior Court in favor of Mary Moe (defendant). The plaintiff's complaint sought recovery for serious physical injury suffered during consensual sexual intercourse with the defendant. The motion judge concluded that the ordinary negligence standard was inapplicable to personal injury resulting from consensual sexual intercourse and, applying a heightened standard of recklessness, found that the defendant was entitled to summary judgment. We agree that the defendant is entitled to summary judgment and, therefore, affirm the order, but for reasons somewhat different from those cited by the Superior Court judge.
Procedural history. On September 23, 1997, the plaintiff filed his complaint in the Superior Court. The case was remanded to District Court and called for trial there on February 14, 2001. On the day of trial, the defendant moved to dismiss the complaint and a District Court judge allowed the motion, purporting to treat it as a motion to dismiss for failure to state a claim upon which relief can be granted under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The District Court judge concluded that the plaintiff's complaint was deficient in its failure to allege facts that could show that the defendant owed the plaintiff a duty of care or that she had proximately caused the plaintiff's injury . The District Court judge also expressed the policy rationale that he was reluctant "to expand the reach of tort law further into the bedrooms of this Commonwealth" and that the Legislature, if it wished to create a cause of action for negligent sexual intercourse, could do so. The plaintiff filed for retransfer of the case pursuant to G. L. c. 231, ยง 102C, and, on November 13, 2001, the defendant moved the Superior Court for summary judgment and dismissal.
In granting the defendant's motion for summary judgment, the Superior Court judge concluded that the defendant's interest in privacy created a policy rationale sufficient to elevate the standard of care in this case to recklessness, rather than ordinary negligence. The Superior Court judge referenced the line of cases beginning with Gauvin v. Clark, 404 Mass. 450 (1989), which apply a recklessness standard to sports activities, rather than a negligence standard, because of the likelihood that a negligence standard would chill athletic competition. Although the judge found the Gauvin "chilling" rationale to be inapplicable to the present case, he determined that the alternative privacy rationale was sufficient to elevate the standard of care to recklessness. Because the judge concluded that this elevated standard was not violated on the facts of the case, he entered summary judgment for the defendant.
Facts
The summary judgment record, viewed in the light most favorable to the plaintiff, Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983), establishes the following facts. The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant's body was secured in this position by the interlocking of her legs and the plaintiff's legs. At some point, the def
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