Barbara A. v. John G., 145 Cal.App.3d 369 (1983)

CASE: Woman sues man for injuries she suffered as a result of the ectopic pregnancy he caused.

FACTS: Plaintiff, a client of defendant, a lawyer, had sex with defendant on two occassions over the course of defendant's representation of her in a family law matter. She demanded the defendant use a condom, telling him that for emotional and financial reasons she did not want to become pregnant, telling the defendant "that she would not engage in sexual intercourse with him if there was any liklihood of her becoming pregnant. He told the plaintiff not to worry, saying "I can't possibly get anyone pregnant." She took this to mean that he was sterile. She became pregnant with a tubal pregnancy and was forced to undergo surgery to save her life and which rendered her unable to have more children. She suffered physical, emotion and financial injuries as a result of the pregnancy and sued him. The suit was dismissed on the pleadings, with the court saying she did not have a cause of action. She appealed.

PLAINTIFF ARGUES: Her injuries are a result of his misrepresentation and deceit. She did consent to sex, but expressly did not consent to becoming pregnant by the defendant (unconsented invasion of her interest in freedom from intentional, unlawful and harmful or offensive contact with her person). Alternately, she pleaded deceit, which is "One who willfully deceives another with intent to induce him or her to alter his or her position to his or her injury or risk is liable for any damage which he or she thereby suffers."

DEFENDANT ARGUES: This action is a case of seduction, not battery or deceit and is, therefore, barred by the antiheartbalm statute. Further, this would be a case of the state governing the relations between two consenting adults in matters of sex and procreation, a violation of privacy and discouaged in Steven K. v. Roni L.

COURT SAYS: Judgment reversed (finding for the plaintiff).

HOLDING: Trial court erred in ruling that a woman did not have a battery or deceit claim against a man who inflicted physical injuries upon her by impregnanting her where the man told ther woman before they engaged in sex that he could not get her pregnant and where he knew or should have known that he was not sterile.

RATIONALE:

• His statement was made with the intent to engage in sexual intercourse, and he knew or should have known that it was false.
• This is not a case of seduction because the woman is suing over the injury resulting from the pregnancy, not from the act of misrepresentation itself.
• Steven K. is inapposite because, in that case, the court ruled the way it did out of concern for children caught in the middle of a dispute in which their very existance is deemed an injury.
• The right to privacy does not insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other.

DISSENT: This is a classic case of seduction, which is barred in California, and constitutes an improper governmental invasion into the promises made between two consenting sexual partners in a most intimate act.

T O P