## Facts

- Kathleen K., a nurse, alleged she contracted genital herpes after sexual intercourse with Robert B., a physician.
- She alleged Robert knew, or in the exercise of reasonable care should have known, that he was infected with a venereal disease when he had intercourse with her.
- She alleged Robert affirmatively assured her he was free of venereal disease.
- She alleged she would not have consented to intercourse had she known his true condition.
- She sought damages for physical injury and emotional distress from contracting an incurable disease.
- She pleaded causes of action for negligence, battery, fraud, and intentional infliction of emotional distress.

## Issues

1. Whether a complaint states tort causes of action where a sexual partner allegedly knew or should have known he had a venereal disease, engaged in intercourse, transmitted the disease, and represented he was disease-free.
2. Whether consent to intercourse may be legally ineffective for battery purposes when induced by misrepresentation or nondisclosure of a material fact about disease status.
3. Whether recognizing such claims is barred by constitutional privacy protections for consensual sexual conduct.

## Decision

- The Court of Appeal reversed the judgment on the pleadings.
- The court held the complaint sufficiently stated claims for negligence, battery, fraud, and intentional infliction of emotional distress.
- The court rejected the argument that constitutional privacy interests categorically bar applying ordinary tort principles to alleged foreseeable, preventable physical injury arising from sexual conduct.

## Legal Principles

- On a motion for judgment on the pleadings, the court accepts the challenged pleading’s factual allegations as true and tests only whether they state a claim.
- A person who knows or has reason to know of a contagious venereal disease owes a duty to act as a reasonably prudent person toward sexual partners, including warning a prospective partner or refraining from intercourse.
- Battery may be stated where the plaintiff’s apparent consent to sexual contact is alleged to be vitiated by misrepresentation or nondisclosure of a material fact (here, disease status), rendering the contact potentially unconsented.
- Fraud is stated by alleging a deliberate misrepresentation of existing fact, knowledge of falsity, intent to induce reliance, justifiable reliance, and resulting damages; a false assurance of being disease-free may satisfy these elements when it allegedly induced intercourse and caused infection.
- Knowingly exposing another to an incurable venereal disease while assuring the person it is safe may constitute extreme and outrageous conduct sufficient to plead intentional infliction of emotional distress.
- Privacy protections for consensual sexual relationships do not provide immunity from civil liability where conduct foreseeably results in physical injury to another.

## Conclusion

The appellate court allowed the plaintiff to proceed on negligence, battery, fraud, and emotional-distress theories based on allegations that the defendant knew or should have known he was infected, misrepresented being disease-free, and thereby caused foreseeable physical injury and related emotional harm.


Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (Cal. Ct. App. 1984)