§ 1.04 Tort Actions Between the Parties
| Jurisdiction | United States |
| Publication year | 2021 |
§ 1.04 Tort Actions Between the Parties
In addition to claims by cohabitants and dating partners based on contract and equitable principles, tort claims may also be possible. Although there do not appear to be any older cases on point, it may be that the parties would have been embarrassed to bring such an action and that the courts were not disposed to grant relief to couples engaged in what was considered immoral behavior. As the vitality of the illegality doctrine as applied to cohabitation and dating disputes has ebbed, there has been an increased judicial willingness to hear tort claims between cohabitants and between dating parties.
In New York there is a conflict of authority with one court permitting an action by a cohabitant against her partner for intentional infliction of emotional distress,171 while another New York court refused to permit an action on the ground that spouses may not bring such a claim.172 The Maine Supreme Court affirmed an award for intentional infliction of emotional distress (granting both compensatory and punitive damages).173 A California court has permitted an action between former cohabitants based on negligent infliction of emotional distress.174
A Federal District Court in Massachusetts has ruled that a dating partner could bring a claim for unauthorized access to email accounts and social media accounts by the other partner.175
If one party to a dating relationship is married to a third party, and the dating relationship results in the end of the marriage, an action for alienation of affections could result.176
A cohabitant would also be permitted to bring a battery claim against her partner.177 A New Jersey court has recognized a cause for action for "battered woman's syndrome" if the relationship was a marriage-like intimate relationship.178
In a New Hampshire case, an unmarried man met an unmarried woman and established a social relationship. He accepted her invitation to spend the night at her house. She did not tell the man that she had recently ended an intimate relationship with another man, who was quite angry and upset about the breakup. On the evening in question, the parties were not aware that the angry man had broken into the woman's home before they arrived. When they went into her home, the angry former boyfriend stabbed the other man numerous times. The injured man sued the woman, claiming she had a duty to warn him about her angry former boyfriend. The court held that the woman had no such duty to warn the injured man.179 The court noted that it was not foreseeable that the former boyfriend would commit such an act.
Some "dating tort" cases have arisen relating to complications stemming from sexual relations. In California, a man sued a woman for fraudulently misrepresenting to him that she was taking birth control pills when she was not.180 She became pregnant, bore a child, and sued him for child support. The court dismissed his complaint, emphasizing privacy concerns.181
Later California cases have distinguished this situation. In one case, the man had told the woman he was dating that he was sterile when in fact he was not and she became pregnant, suffered an ectopic pregnancy and was forced to undergo surgery which saved her life but rendered her sterile.182 She brought an action against the man based upon his false representation of sterility. The court permitted the action. The earlier decision was distinguished on the basis that a child support obligation was essentially involved in that case. In the present case, no child was involved.183
A Massachusetts case involved a claim by a man who had suffered a "penile fracture" while engaged in sexual intercourse with the defendant. The man sued, based on a claim of negligence. The court concluded that because there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of sexual contact, that there was no duty of reasonable care owed by the woman to the man. The court did conclude that parties should be required not to engage in reckless conduct toward each other during sexual interactions; the court found there was no evidence the plaintiff could have made such a showing.184
Another Massachusetts case involved a situation where a man allegedly misrepresented his willingness to have a child with a woman, and did not disclose his prior vasectomy. The court rejected the woman's claims of negligent infliction of emotional distress, fraud, intentional infliction of emotional distress, and battery.185
In a New Jersey case, a woman alleged that her boyfriend promised her that if she had an abortion, he would take her on a vacation and continue their intimate relationship. When he ended their relationship after she had an abortion, she sued the boyfriend for fraud. The appellate court ruled that the woman's claim should be dismissed for a number of reasons. First...
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