## Facts

- After divorce, Nancy A. McPherson sued her former husband, Steven W. McPherson, alleging he transmitted HPV to her through marital intercourse after an extramarital sexual relationship.
- In a jury-waived trial, the Superior Court found it more likely than not that Nancy was infected with HPV through sexual contact and that Steven, her only sexual partner, more likely than not infected her.
- The court found Steven had sex with the third party, had intercourse with Nancy afterward, did not disclose the affair, and took no protective steps against possible sexually transmitted infection.
- The court also found Steven did not know and had no reason to know he might have HPV at the relevant time: he had no symptoms, no knowledge that partners had symptoms, and no medical diagnosis of any sexually transmitted disease.
- The Superior Court entered judgment for Steven on claims of negligence, assault and battery, and negligent infliction of emotional distress (NIED).
- Nancy appealed the denial of her tort claims; Steven cross-appealed, challenging several factual findings as unsupported by the evidence.

## Issues

1. Whether a spouse who transmits an STD during consensual intercourse is liable in negligence when the spouse neither knew nor should have known of the infection.
2. Whether failure to disclose an extramarital affair vitiates consent to intercourse so as to support assault and battery when the defendant lacked knowledge or reason to know of infection.
3. Whether NIED may be recovered when the alleged emotional harm is predicated on conduct that does not constitute a breach of a legally recognized duty.
4. Whether the trial court’s bench-trial factual findings were clearly erroneous.

## Decision

- The Supreme Judicial Court of Maine affirmed the judgment for Steven on all claims.
- The court held Steven was not negligent because he neither knew nor had reason to know he was infected, and thus breached no duty to warn or protect.
- The court rejected a theory that marital infidelity, standing alone, creates a tort duty supporting negligence liability in these circumstances.
- The court held Nancy’s consent to intercourse was not vitiated by nondisclosure of the affair where Steven was unaware of infection and did not misrepresent or conceal a known disease risk.
- The court affirmed denial of NIED because the claim depended on the same conduct and failed absent an actionable duty breach.
- The court rejected Steven’s cross-appeal, concluding the challenged findings were supported by credible evidence and were not clearly erroneous.

## Legal Principles

- Negligence liability for transmitting a communicable disease generally requires proof the defendant knew or should have known of the infection at the time of the alleged transmission.
- Adultery or lack of sexual fidelity is not, without more, a freestanding tort duty that establishes negligence liability for disease transmission.
- Consent to sexual contact is vitiated for battery only by a substantial mistake about the nature of the invasion of interests that is known to the defendant or induced by misrepresentation; nondisclosure of an affair, without knowledge of infection or specific disease risk, does not itself negate consent.
- An NIED claim premised on alleged negligence fails where the defendant owed no relevant duty and committed no actionable breach.
- Appellate review of bench-trial factual findings applies a clear-error standard; findings supported by credible evidence are affirmed even if they support no liability under the governing duty rules.

## Conclusion

The court affirmed judgment for the defendant, holding that even if the husband more likely than not transmitted HPV, he was not liable in negligence, battery, or NIED because he lacked actual or constructive knowledge of infection and his nondisclosure of an affair did not invalidate the wife’s consent to intercourse.


McPherson v. McPherson, 712 A.2d 1043 (Me. 1998)