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Doe v. Moe5/16/2005
endant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff's abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.
Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as "light bondage" during their intimate relations, there was no evidence of "light bondage" on this occasion. The plaintiff's injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively.
Discussion
The plaintiff contends that in Massachusetts "ordinarily everyone has a duty to refrain from affirmative acts that unreasonably expose others to a risk of harm," Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989), and that every person is responsible for injury that results from a lack of ordinary care. Before liability for negligence can be imposed, however, it must first be established that the defendant owed the plaintiff a legal duty of care. See, e.g., Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995); Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002); Remy v. MacDonald, 440 Mass. 675, 676 (2004). The existence of such a duty is a question of law, Wallace v. Wilson, 411 Mass. 8, 12 (1991); Davis v. Westwood Group, supra at 743, and is "to be determined by reference to existing social values and customs and appropriate social policy." Cremins v. Clancy, 415 Mass. 289, 292 (1993), quoting from Wallace v. Wilson, supra.
Whether persons involved in consensual sexual relations owe each other a legal duty of reasonable care in the conduct of those relations is a question of first impression in Massachusetts. Generally, as the plaintiff claims, tort law requires that a duty of reasonable care be exercised to avoid injury to others. Reasonable care is determined by the "standard of conduct demanded by the community for the protection of others against unreasonable risk." Restatement (Second) of Torts § 283 comment (c) (1965). However, " t should be recognized that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser & Keeton, Torts § 53, at 358-359 (5th ed. 1984). Here, the defendant can be found liable to the plaintiff for his injuries only if we determine that the defendant owed him a legal duty of reasonable care in the conduct of their consensual sexual relations. If we determine that no such duty of care existed, the defendant is entitled to summary judgment. See Dhimos v. Cormier, 400 Mass. 504, 507 (1987).
The Supreme Judicial Court has held that, while reasonable care is the duty owed in most circumstances, there are exceptions to this general principle, although "only strong arguments of public policy should justify a judicially created immunity for tortfeasors and bar to recovery for injured victims." Lewis v. Lewis, 370 Mass. 619, 629 (1976). Pursuant to this rationale, Massachusetts has recognized a limited number of circumstances in which, while all other legal requirements of negligence
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