Intentional Sex Tort? (Im)practical Exercise

A while back, there was some spirited discussion about “Intentional Sex Torts” and whether misleading someone in order to hook up with them should be actionable.  (Post here)

Analyze the facts below.  Should the Bass Player be liable?  

What, if anything, should Ms. Jorgensen recover?


10 Responses to Intentional Sex Tort? (Im)practical Exercise

  1. Jay Wolman says:

    Only if you impose an affirmative duty on bass players to disclose that they are bass players, not merely members of the band.
    Plus, people like John Paul Jones, Geddy Lee, Paul McCartney, Bootsy Collins, Flea and John Entwhistle would be so well known that you should assume constructive knowledge that the person is a bassist. Thus, at what level of fame do you impart constructive knowledge?
    As to damages, would you offset for comparative negligence? unclean hands? the value of the satisfaction received at the time?


    • Okay. A number of claims are vitiated because it seems Ms. J. consented to “do” Mr. S. Nevertheless, this is Kentucky, and we lawyers are blood sucking assholes. Several claims sounding in general douchbaggery spring to mind: fraud by omission, breach of contract via the implied covenant of good faith and fair dealing, negligent misrepresentation, and restitution & unjust enrichment, among others. I’m going to focus on the first of these because it strikes me as the most curious, but I think something could be written for the others.

      Fraud by Omission
      In Kentucky, to establish an actionable case of fraud based upon suppression of a fact, i.e., that Mr. S. was the bass player, Ms. J. must demonstrate (1) that Mr. S. had a duty to disclose a material fact, (2) that Mr. S. failed to disclose that fact, (3) that the failure to disclose the material fact induced Ms. J. to act, and (4) that Ms. J. suffered actual damages. The greatest hurdle for Ms. J. will be the first and last elements; I suppose these elements correspond to Marc’s two questions as well.

      Kentucky recognizes a duty to disclose in four circumstances. Giddings & Lewis v. Industrial Risk, 348 SW 3d 729, 747 (Ky. 2011). The first two are right out: this does not seem to be a confidential or fiduciary relationship, and I am unaware of any Kentucky statute imposing such a duty. See id. It may be not be frivolous to argue that one or both of the other two circumstances exist, however. Kentucky courts will impose a duty to disclose when a defendant has partially disclosed material facts to the plaintiff but created the impression of full disclosure, and where one party to a contract has superior knowledge and is relied upon to disclose that knowledge. See id.

      Turning to the present case, it seems that the partial disclosure by Mr. S. that he was a member of the band was a material fact–Ms. J. “did him” because Mr. S. said something like “yeah, I’m in the band.” Although more facts are needed to fully understand the circumstances, it is possible that Mr. S. created the impression of full disclosure while witholding the fact that he was the bass player. In addition, it seems likely Mr. S. had superior knowledge in the agreement. It is possible Ms. J. relied on Mr. S. to disclose that knowledge. On the other hand, it is possible that she did not–she admits that she could have inquired herself. Accordingly, Ms. J. may be able to establish the first element of an action for fraud by omission.

      Establishing damages would be difficult as well. It’s possible Ms. J. suffered humiliation, emotional anguish, lost time, and harm to her reputation. Based on her responses in the article . . . uh, it could be hard to make such a showing. Bringing the suit itself would probably be more humiliating, more of a waste of time and more terribly harmful to her reputation. Attorney Wolman brings up interesting points too.

      Note that because no money changed hands, the contract cannot be voided as an illegal agreement for prostiution. See KY Code 529.020 (“A person is guilty of prostitution when he engages . . . in sexual conduct with another person in return for a fee.” [emphasis added]).

      Okay, that’s enough nerding out for today.

  2. dan says:

    I see this as yet another clear indication of abdication of parental responsibility. My kids knew how to recognize bass players before they entered middle school. And so did all their friends by the time HS rolled around. next thing you know there will be an alleged affirmative duty to have a warning label on the bass player “CAUTION THIS IS A LADDER”….no…wait…wrong duty…

  3. matthewsolin says:

    We also have to keep in mind that most bass players are judgment-proof!

  4. senpai71 says:

    @Jay Wolman: “Only if you impose an affirmative duty on bass players to disclose that they are bass players, not merely members of the band.”

    Would that affirmative duty be similar to sex offender disclosure rules (proactively informing the nearby populace) or would it only apply to groupies? Because if a bass player moves into my neighborhood, I want to know about it immediately – it may affect house prices. Plus, y’know, won’t someone please think of the children?

    Mind you, if my daughter were to get ‘involved’ with a musician, I wouldn’t mind a bass player as much as a guitarist. Show-offs, the lot of ’em.

    • tom cushman says:

      Sometimes it’s better if you’re conscious during the concert. If she had been, she might have recognized that the dude was playing some kind of instrument, (you know, like a band member). If she had asked someone, she could have probably figured out that that tall thing was a bass. That may not make him important, but he takes up a lot of room.

  5. Larry Sutter says:

    Only tort here is his, for slander.

  6. Warren says:

    And yet somehow when I played bass in college, no groupie ever mistook me for an important member of the band.

    Important is relative, too: how else can you be sure the stage is level unless the bass player is drooling out of both corners of his mouth?

  7. dan says:

    I’m just going to throw out negligent misrepresentation. because

  8. andrews says:

    Not sure it is 01-Apr yet, but nice clip which I presume is from the Onion but I suppose could be from some other similarly reliable source.

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