## Facts

- Carolyn Hogan and Mark Tavzel were married for approximately fifteen years, separated, and later attempted reconciliation.
- During the reconciliation period (October 1989 to January 1990), they engaged in consensual sexual intercourse.
- Tavzel had genital warts (condylomata acuminata), knew he was infected, and allegedly did not disclose the condition or take precautions to avoid transmission.
- Hogan alleged she did not know of Tavzel’s infection, was not warned, and contracted the disease from Tavzel during consensual intercourse.
- The parties divorced on May 8, 1990, and Hogan sued in 1993 for negligence, battery, fraudulent concealment, and intentional infliction of emotional distress.

## Issues

1. Whether interspousal immunity barred Hogan’s negligence, fraudulent concealment, and intentional infliction of emotional distress claims based on conduct occurring before the Florida Supreme Court abrogated interspousal immunity, where the suit was filed after that decision.
2. Whether a battery claim is legally foreclosed when the parties consented to sexual intercourse, or whether nondisclosure of a known sexually transmitted disease can vitiate consent to the harmful/offensive contact.

## Decision

- The Fifth District Court of Appeal reversed the dismissal with prejudice and remanded for further proceedings.
- Interspousal immunity did not bar Hogan’s negligence, fraudulent concealment, and intentional infliction of emotional distress claims; the court applied the Florida Supreme Court’s abrogation of the doctrine to this post-decision lawsuit.
- The court held that consent to sexual intercourse does not, as a matter of law, constitute consent to undisclosed infection; Hogan stated a viable battery claim based on alleged knowing, nondisclosed transmission of an STD.

## Legal Principles

- Judicial decisions generally apply retroactively absent an expressed limitation; tort actions filed after abrogation of interspousal immunity are not barred solely because the underlying conduct predates the abrogation.
- Interspousal immunity does not shield a spouse from tort liability in a post-abrogation action for injuries allegedly caused during the marriage.
- For battery, apparent consent to physical contact may be ineffective where consent is procured through fraud or concealment of material facts about the nature and risk of the contact.
- Consent to sexual intercourse does not necessarily include consent to a substantially different, harmful, or offensive contact such as infection with an undisclosed sexually transmitted disease.
- Knowing nondisclosure of an STD can support intentional-tort liability when the plaintiff alleges the defendant intentionally or knowingly exposed the plaintiff to infection without informed consent.

## Conclusion

The appellate court reinstated Hogan’s complaint, holding that interspousal immunity did not bar her tort claims filed after the doctrine’s abrogation and that consensual intercourse does not preclude a battery claim where a partner allegedly knowingly concealed an STD and caused infection without informed consent.


Hogan v. Tavzel, 660 So. 2d 350 (Fla. Dist. Ct. App. 1995)