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Hogan v. Tavzel

Court of Appeal of Florida, Fifth District

September 8, 1995, Filed

CASE No. 94-2609

Opinion

 [*351]  SHARP, W., J.

Hogan appeals from a Final Judgment which dismissed her second amended complaint with prejudice. She sued her former husband, Tavzel, for negligence, battery, fraudulent concealment, and the intentional infliction of emotional distress. The substance of her complaint was that in 1989-90, through consensual sex, Tavzel infected her with genital warts (condylomhea acuminata) at a time he knew of his disease, but she did not, and she was not warned. The trial court held Hogan's suit was barred by interspousal immunity and that there is no tort of battery for consensual sex which results in the transmission of a sexually transmitted disease. We reverse.

Hogan and Tavzel were married for fifteen years but encountered marital problems which caused them to separate. During a period of attempted reconciliation between October of [**2]  1989 and January 1990, Tavzel infected Hogan with genital warts. He knew of his condition but failed to warn Hogan or take any precaution against infecting her. The parties were divorced on May 8, 1990. Hogan 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. Tavzel moved to dismiss. The trial court granted the motion on the negligence, fraudulent concealment and intentional infliction of emotion distress counts, on the theory that the Waite decision was not retroactive. He dismissed the battery count because he 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. He recognized that section 741.235, Florida Statutes (1985) abrogated interspousal immunity as to the battery count. The trial judge noted that Florida law has not, as yet, recognized a cause of action for battery due to the transmission of a sexually communicable disease. 1 With regard to this issue, we agree this is a case of first impression in this state.  [**3]  

 [**4]  The Third District has taken the position that the Waite decision is retroactive because the Florida Supreme Court did not specifically limit its application.  Kalisch v. Kalisch, 646 So. 2d 292 (Fla. 3d DCA 1994), rev. denied, 654 So. 2d 919 (Fla. 1995). ] In  [*352]  general, when a court overrules a former decision, it is retrospective and prospective in its operation, unless the overruling opinion specifically declares it to have only a prospective effect.  Florida East Co. Railway Co. v. Rouse, 194 So. 2d 260 (Fla. 1966); Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So. 2d 251 (1944); National Insurance Underwriters v. Cessna Aircraft, 522 So. 2d 53 (Fla. 5th DCA), rev. denied, 531 So.2d 1352 (Fla. 1988); Hampton v. A. Duda & Sons, 511 So. 2d 1104 (Fla. 5th DCA 1987). 2 We have reviewed the Waite opinion and also conclude that nothing in the decision limits it to prospective application. Kalisch. Thus, the counts on negligence, fraudulent concealment and intentional infliction of emotional distress should not have been dismissed as barred by interspousal immunity.

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660 So. 2d 350 *; 1995 Fla. App. LEXIS 9513 **; 20 Fla. L. Weekly D 2053

CAROLYN HOGAN, Appellant v. MARK TAVZEL, Appellee

Subsequent History:  [**1]  Released for Publication September 28, 1995. Petition for Review Denied January 4, 1996, Reported at: 1996 Fla. LEXIS 456.

Prior History: Appeal from the Circuit Court for Orange County, Joseph F. Baker, Judge.

Disposition: REVERSED AND REMANDED.

CORE TERMS

battery, disease, infected, sexually, sexual intercourse, interspousal, transmission, immunity, concealment, fraudulent, genital, partner, herpes

Civil Procedure, Judgments, Preclusion of Judgments, Prospective & Retroactive Applications, Governments, Legislation, Effect & Operation, Prospective Operation, Courts, Judicial Precedent, Torts, Intentional Torts, Defenses, Consent