Doretea Burton alleged that she contracted genital herpes from her ex-husband, Nyles Burton, M.D., because he engaged in sexual activity with her during their marriage without disclosing that he had contracted the disease. On the basis of that allegation, Ms. Burton asserted an array of tort claims in the Circuit Court for Prince George’s County.

Dr. Burton moved for summary judgment on several grounds, including the ground that, as a matter of law, Ms. Burton had assumed the risk of her injuries and had consented to engaging in sexual activity with someone who, she knew, had herpes. The circuit court granted the motion. Ms. Burton appealed.

The Appellate Court of Maryland held in its unreported opinion filed on April 17, 2026 that because the record is replete with genuine disputes of material fact about whether Ms. Burton knowingly assumed the risk of her injuries or consented to Dr. Burton’s alleged misconduct, it vacated summary judgment for Dr. Burton and remanded the case to the trial court.

Assumption Of Risk

Assumption of the risk is an affirmative defense on which the defendant bears the burden of proof. In Maryland, a defendant must prove three elements to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger.

The Appellate Court of Maryland stated that the issue of assumption of the risk rests upon the plaintiff’s subjective knowledge. Because the focus is on what the plaintiff actually knew, understood, and appreciated, the issue is ordinarily left to the jury to resolve. A court should not grant summary judgment to a defendant on the ground of assumption of the risk unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff. Nonetheless, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court. The types of dangers that a plaintiff must understand are the certain risks which anyone of adult age must be taken to appreciate, including the danger of slipping on ice or of falling through unguarded openings or lifting heavy objects.

The Appellate Court of Maryland stated: “Ms. Burton’s statements are irrelevant to the issues of consent and assumption of risk if the jury finds, as it may, that she contracted HSV-2 from Dr. Burton in 2005 and that he knew or should have known that he had HSV-2 at that time but did not disclose the infection until at least a year or more later. Ms. Burton could not have assumed the risk of contracting a disease that she had already contracted unwittingly. Nor could she have consented to becoming infected with HSV-2 if she was already infected with the virus … When viewed in the light most favorable to Ms. Burton, numerous facts, unmentioned by the court in its decision, undermine the conclusion that Ms. Burton knew that Dr. Burton had HSV-2 … viewing the facts and all reasonable inferences in the light most favorable to Ms. Burton, a reasonable jury could find that Ms. Burton did not fully know, appreciate, and understand the risk that she would contract HSV-2 by having sex with Dr. Burton until July 2018. Furthermore, because the distinction between assumption of risk and consent is only semantic, a reasonable jury could find that Ms. Burton did not knowingly and intentionally consent to having sex with a man who was infected with HSV-2.”

“In our judgment, however, it is less than clear that a person of normal intelligence in Ms. Burton’s position must have understood the danger of contracting HSV-2 from Dr. Burton at any time before July 2018. Ms. Burton certainly could not have understood the danger of contracting HSV-2 from Dr. Burton if she contracted it in 2005, before he ever mentioned the possibility that he might have genital herpes or some other STD. And even if Ms. Burton did not contract HSV-2 until sometime after Dr. Burton first raised the issue of whether he might have herpes, the equivocal nature of the evidence in this case obviates any conclusion that a person of ordinary intelligence in her position must have understood the danger of contracting HSV-2 from him.”

“In summary, the circuit court erred in concluding that, as a matter of law, Ms. Burton assumed the risk of contracting HSV-2 from Dr. Burton. A reasonable jury could find that Ms. Burton did not fully understand and appreciate the risk of contracting HSV2 from Dr. Burton, and an adult of normal intelligence in Ms. Burton’s position would not necessarily have understood that risk.”

Source Burton v. Burton, No. 710 September Term, 2024.

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