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Doe v. Moe5/16/2005
v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.
While the record in this case may have permitted a fact finder to conclude that the defendant's conduct exposed the plaintiff to some risk of harm, the record does not depict conduct that can be fairly categorized as wanton or reckless. Here, the undisputed facts demonstrate that the defendant did not think about possible injury to the plaintiff when she changed her position. There is no evidence in this record to suggest that the defendant's conduct created a "high degree of likelihood that substantial harm [would] result to [the plaintiff]," which is required to prove wanton or reckless conduct. Commonwealth v. Catalina, 407 Mass. 779, 789 (1990), quoting from Commonwealth v. Welansky, supra. Therefore, because the plaintiff has no reasonable expectation of proving an essential element of his case, summary judgment was appropriate. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991).
Judgment affirmed.
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