7&8: Consent
Thursday, January 26, 2012
8:49 AM
Reading Notes:
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If the plaintiff makes out a prima facie case, the defendant can still escape or negate liability
by establishing a defense
Defendant usually has the burden of proof
o Some tortes include an element of un-contented invasion of particular interest, placing
the burden of proof on the plaintiff
Consent can negate one or more elements of a prima facie case, such as the offensiveness of a
touching
TITLE, PAGE AND CITATION OF CASE:
O'Brien v. Cunard S.S. Co.
p.45
Mass SC, 1891
Judge/Justice: Knowlton
FACTS: the plaintiff sued the defendant for battery and negligence for injuries arising out of the
vaccination she received on one of the defendant's ships. The opinion does not reveal the nature of
her injuries.
PROCEDURAL HISTORY: the trial court directed a verdict for the defendant; the plaintiff appealed
ISSUE:
 Did the plaintiff commit an assault?
o Did she consent to the vaccination?
 Was the defendant guilty of negligence towards the plaintiff?
RULE:
HOLDING:
REASONING:
 Boston Harbor required to all entering emigrants be vaccinated against smallpox
 About 200 women were vaccinated on board the ship
 When the woman got to the front of the line, she told the doctor that she had already been
vaccinated. Because she had no mark on her arm, the doctor indicated that he would
vaccinate her again.
o She did not indicate that she did not want to be vaccinated again (did not indicate no
consent)
o Standing in line and giving her arm for vaccination implied consent
o Allowed the doctor to vaccinate her again, and took the ticket indicating she had been
vaccinated
Class Notes:
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Any touching by a doctor that is done in the absence of consent is a battery
Who has the burden of establishing consent or non-consent?
o Hypothetical - no line, but just a group of people standing around and doctor walking
around group vaccinating people
 Doctor would have to point to an overt action that implied consent rather than
just being there
o Defense: people who go around touching people run the risk of their own conduct - need
to make sure they have consent
 On a human level, it is the actor's responsibility to make sure that this action is
consensual before starting
o Plaintiff: We need to be clear when we are not consenting
Consent can't typically be gained from silence
o Does failure to object amount to consent?
 Notice at a concert being filmed - entry means you consent
 Web site: unless you click here, you consent
 One party is unilaterally deciding the terms on which you consent
TITLE, PAGE AND CITATION OF CASE:
Overall v. Kadella
COA Michigan
1984
p.47
Judge/Justice: Per Curiam
FACTS: defendant participates in the fight after the conclusion of a hockey game, in which he
punches the plaintiff in the eye and causes significant damage. The jury finds that the defendant did
so unprovoked despite disagreements as to the conduct of the defendant during the altercation.
PROCEDURAL HISTORY: jury awards monetary damages to defendant
ISSUE: can the plaintiff sue for injuries incurred while he was voluntarily participating in a hockey
game?
RULE: participation in a game involves a manifestation of consent to those bodily contacts which
are permitted by the rules of the game. An intentional act causing injury, which goes beyond what is
ordinarily permissible, is an assault and battery.
HOLDING:
REASONING:
 There is a rule against fighting in hockey, and defendant's intentional battery certainly
violated this rule
o The battery may have even occurred after the conclusion of the hockey game
Notes:
 They entering the field of play, a player consents to many types of contact, but not all
imaginable contacts
o Accidental contact is governed by negligence. The law recognizes the inherent risk of
playing sports.
If the contact was intentional, the issue is whether it was outside the boundaries of the
implied consent
Not how extreme the conduct is - how outside the norm of the enforcement of the rules the
conduct is
You need to know the risk you are assuming when you participate in a sport
o
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Class Notes:
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J
TITLE, PAGE AND CITATION OF CASE:
McPherson v. McPherson
Supreme Court of Maine, 1998
p.50
Judge/Justice: Dana
FACTS: a wife files a claim of assault and battery against her former husband, claiming that he
infected her with human papilloma virus he acquired through an extramarital affair. The court
found that the husband did not take steps to protect away from possible infection, he had no
physical symptoms or knowledge of having HPV.
PROCEDURAL HISTORY: Judge found no assault and battery
ISSUE: Did she consent?
RULE:
 One who effectively consents to conduct of another intended to invade his interests cannot
recover in an action of tort for the conduct or for harm resulting from it (2nd Torts § 892A(1))
 If a person consents to conduct based upon a substantial mistake, and if the other person is
aware to the other person, who knows of the potential harm or induces by misrepresentation,
the defendant is liable
HOLDING: Affirmed
REASONING:
 Because the husband was unaware of any potential infection, he could not have knowingly
subjected her to risk or misrepresented his intent
 Wife consented to invasion of her personal interest while both were ignorant of its harmful
nature
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Vitiated: To impair or weaken the effectiveness of
Class Notes:
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She consents to sex, which negates a claim of battery
o She claims his misrepresenting his fidelity invalidates her consent
What do you consent to when you consent to sex?
o Do you consent to the possible contraction of an STD?
o Does the husband, knowing he had been unfaithful, have to alert his spouse to his
possible contraction of an STD?
One valuable skill for a lawyer is predicting where the law has wiggle room and where it will
change in the future - law of consent is one such place
If there are two different vaccines and different risks associated with each, the doctor must
inform the patient of the different risks to avoid a charge of negligence
o Battery doesn't have that informed consent requirement (yet)
Sports - strong feeling to let sports regulate themselves