Barbara A. v. John G.

Court of Appeals of California, First District, Division Three · 1983 · Torts

TortsBatteryDeceitConsentPrivacyMisrepresentationbatterydeceit

Facts

Appellant retained respondent, an attorney, in a family law postdissolution support matter, and while that representation continued they had sexual intercourse on two occasions. Before the first encounter, appellant said she did not want to become pregnant and asked respondent to use a condom, but respondent told her, "I can't possibly get anyone pregnant," which she understood to mean he was sterile or had had a vasectomy. Appellant alleged that statement was knowingly false, made to induce intercourse, and that she justifiably relied on it in consenting to intercourse without protection. She became pregnant, suffered a tubal ectopic pregnancy, underwent life-saving surgery, lost a fallopian tube, became sterile, and suffered physical, emotional, and financial injuries.

Issue

Does a woman who suffers physical injuries from an ectopic pregnancy state a tort cause of action against a man who induced her consent to sexual intercourse by falsely representing that he was infertile? More specifically, are claims for battery and deceit barred by Civil Code section 43.5, Stephen K. v. Roni L., or privacy-based public policy concerns?

Rule

A plaintiff states a cause of action for battery where consent to touching is invalid because the act exceeded the scope of consent or because consent was procured by fraud, and the plaintiff alleges resulting damage. A plaintiff states a cause of action for deceit by pleading a false representation, the defendant's knowledge of falsity or lack of reasonable grounds, intent to induce reliance, justifiable reliance, and resulting damage. Civil Code section 43.5 does not bar such claims when the gravamen is physical injury caused by misrepresentation rather than a seduction claim.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, Lena Ortiz told Noah Benton she would have sex only if there were no realistic chance he could impregnate her. Noah knowingly lied that he had undergone a vasectomy, Lena relied on that statement, and she later suffered a dangerous pregnancy complication requiring emergency surgery.

Under the majority rule, which is the strongest argument that Lena has stated a battery claim?

Explanation. The majority held that battery may be pleaded where consent to the touching is invalid because it was fraudulently induced or because the act exceeded the scope of consent, so long as resulting damage is alleged. Lena limited her consent to intercourse posing no meaningful pregnancy risk, relied on a knowing falsehood about infertility, and suffered physical injury. The rule does not make every lie actionable, does not require intent as to the exact complication, and does not disregard consent altogether.