Hogan v. Tavzel

660 So.2d 350 (Fla.App.1995)

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Nature of the Case

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Facts

P and D were married for fifteen years. They separated and during reconciliations, D infected P with genital warts. D knew of his condition but failed to warn P or take any precaution against infecting her. The parties were divorced on May 8, 1990. P brought this suit in 1993. The suit was filed after the Florida Supreme Court's decision in Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), which abrogated the doctrine of interspousal immunity. D moved to dismiss. The trial court ruled Waite not retroactive and dismissed. The battery count was dismissed because the judge found that consensual sexual intercourse fails as a matter of law to establish the element of unconsented to touching which is required to sustain the tort of battery. P appealed.