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Introduction
Intentional Torts
Privileges
Policy issues
Negligence
Damages
Vicarious liability
Strict liability
Products liability
Index of tort cases
Tort cases
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Consent
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Rule
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D will not be liable for an otherwise intentionally tortious act if P consented to
D's act.
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Relation to prima facie case
| Most courts: Lack of Consent is part of P's Prima Facie Case which
he must plead and prove.
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| How to decide consent exists?
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Express (Actual) Consent
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Express Consent: P has expressly
shown a willingness to submit to D's conduct.
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Implied Consent
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May be implied from P's
conduct, from custom, or from the circumstances.
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Apparent Consent: that which a Reasonable person would infer from P's
conduct.
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Test: Whether a reasonable person in the position of the D would believe
that the P had consented to the invasion of his interests.
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Examples:
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Voluntarily engaging in a body contact sport.
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| Conduct may imply consent.
Failure to resist is sufficient to assume consent. O'Brien v.
Cunard S.S. Co (Immigrant woman on ship required to have vaccination
b/f entering US, holds out arm for shot)
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Objective Manifestations
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Outward, objective manifestations are
taken into account. (See O'Brien)
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Consent will be held to exist
regardless of P's subjective state of mind.
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Why? ---Ds are not mind
readers.
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Custom or Usage
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If D can show that it was Customary for one in P's
situation to consent to a certain action by the D, there will be consent even if
P made no objective manifestation of consent.
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Ordinary contacts in daily
life, bumping in a crowd
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Silence
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When a person's inaction indicates consent.
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Whether a reasonable person in the D's position would have
inferred the consent.
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Boy tells girl "I'm going to kiss you."
She does not respond or answer; boy kisses her; girl is deemed to have
consented.
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RS (§50)
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To what
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Consent applies only to intentional torts; not usually applied
to Negligence.
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Validity
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Criminal Acts
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Courts are divided when the act consented to is criminal
(i.e. intercourse w/ youngins)
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| Majority View: Consent to a criminal act is ineffective, except to
abortions
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Minority View: Consent is always effective even if breach of
peace is involved.
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Certain Class Protections
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When Legislature seeks to protect a class
from their own poor judgment, then consent is ineffective.
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Minors
| Barton v. Beeline (bad law) (Rape in limo): A female under the age of 18 has no cause of
action against an adult male who willingly consents if she knows the nature and
quality of her act.
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Mistake
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Usually, mistakes are not enough in themselves to make consent
ineffective.
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To make consent ineffective P has to make a substantial mistake as to
either:
| The nature of the invasion (Neal v. Neal); or
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The expected harm
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| Where P expressly consents by mistake, the consent is still a valid
defense unless the D caused the mistake (lying) or knows of the mistake
and takes advantage of it. (Hogan v. Tavzel)
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Mistake induced or known by D
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Consent is
ineffective as a defense for the D
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Essential aspect in order to make
consent an effective defense
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Mistake must relate to some essential aspect of
the transaction
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Mistake must relate to an aspect of the invasion that makes
it harmful or offensive.
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Medical Cases
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Active Misrepresentation
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If a Doctor
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Mistates the existence or
probability of risks; or
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Fails to disclose consequences that the Dr. knows
will result.
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...then consent is an ineffective defense.
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Non-Disclosure
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If Dr. fails to mention the risk of consequences that
may or may not follow the treatment.
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Bang v. Charles T. Miller (Cutting
of sperm cords w/o consent) Where a surgeon has time and no emergency
exists, a patient should be informed of all alternative possibilities and given
a chance to decide before Dr. proceeds
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Most courts hold that the conduct is negligent and do not allow a battery
claim.
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Dr. can claim that what he did was acceptable medical practice;
or
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the patient would have been overly emotional
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Duress
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If the Plaintiff consented under Duress, then ineffectiveness
depends on the immediacy and seriousness of the duress
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The threat/duress has to be an Immediate Physical Force
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Consent is
also ineffective if D falsely asserts legal authority
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Circumstances
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Emergency
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Allows implied consent in order to save life
or safeguard a person's health
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RS(2d) §892 Emergency Action without Consent
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Conduct that injures
another does not make the actor liable to the other, even though the other has
not consented if:
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An emergency makes it necessary or apparently necessary, in order to
prevent harm to the other, to act before there is opportunity to obtain consent
from the other or one empowered to consent for him, and
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The actor has no reason to believe that the other, if he had the
opportunity to consent, would decline.
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An Emergency may justify extending surgery.
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perform good surgery, even if it is an extension of the operation origninally
comtemplated and consented to. Kennedy v. Parrot (Cist popped when in for appendix problem)
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Scope of Consent
| A person who exceeds the scope of consent will be liable
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Surgery
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P's consent to one particular type of surgery for a particular
purpose will not constitute consent to another type of surgery which is a
substantially different surgical procedure.
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It is irrelevant that the
additional or different surgery was medically desireable
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Social Interests and Issues
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In absence of overriding danger, when medical treatment
interferes with the basic constitutional rights, a patient cannot be
made to accept
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| A person who is considered medically incompetent is not
subject to any treatment that they previously refused when they were competent.
In Re Estate of Brooks (Jehovah Witness did not consent to blood
transfusion).
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| Third party consent
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Must DETERMINE
| If patient is competent he will determine,
if not, the court has to make a substituted judgment.
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To make a Substituted Judgment
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Look at oral directions for treatment
made to family friends, & doctors.
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Patient's past decisions regarding medical treatment. If still unsure:
| Court supplants its knowledge of patient by determining what
most people
would do in the same situation taking into account the welfare of any people
affected.
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Viable fetus & surviving children. BUT Mother has absolute
right if COMPETENT. Courts must exhaust all resources before making their own
decision
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| In Re AC (Pregnant woman who they
could not determine if she was competent): She does not have an absolute right
to denial of treatment, Court ordered C-section, mother and child died
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Doctrine of Consent
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Any person has the right to make an informed
choice, if competent to do so, to accept or forego medical treatment rooted
in the concept of bodily integrity
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Right is not absolute
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Parens patriae - in life or death
situations, court may act as the guardian of disabled persons (ie. fetus) for:
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Preserving life
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Preventing suicide
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Maintaining the ethical
integrity of the medical profession
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Protecting third parties
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Lack of capacity to consent
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Incompetents, drunken persons, young children
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Incapable of consent to
tortious conduct
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Implied by Law consent
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Where action is necessary to save a person's
life or some other important interest in person or property.
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Where there is an emergency situation where P is incapable of consenting
and a reasonable person would conclude that contact is necessary to prevent
death or serious bodily harm.
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Necessary Factors (all must be present)
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Incapacitated,
unconscious
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| Emergency - in order to save life of safeguard health, immediate
action is necessary
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Lack of Consent Not Indicated
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Reasonable Person would
consent in the circumstances.
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Consent by Relative
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Court Order
| If medical care is necessary to save a child, and the
parents do not consent, the Hospital or Dr. will usually be given a court order
giving consent; w/o court order the hospital and/or Dr. will be liable, unless
there was no time. ( In Re A.C.)
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Self defense
Defense of others
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Rule
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One may use force to defend another person only when the other
person could have used force
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Intervener - may not use a greater degree of force than appears necessary
to repel the attack.
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Reasonable Mistake (you are still liable)
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Intervener "steps into
the shoes" of the person he is aiding
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If intervener helps the aggressor
the intervener does not have the privilege of self- defense.
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Defense of property
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Reasonable Force
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may be used to protect one's property
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Defense of Property
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is a defense to intentional torts as long
as:
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The Intrusion is not privileged
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Actor (defender) reasonably believes
force is necessary to prevent/terminate the intrusion, and
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Actor demands that
the intruder desist before force is used unless it appears that it would be dangerous or
futile.
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Mistake
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D's Mistake as to Danger
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If the property owner mistakenly but
reasonably believes that force is necessary to protect his property, then use of
force will be privileged.
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D's Mistake as to the Intruder's Presence
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If the property owner
reasonably believes that the intruder has no right to be there, and intruder's
presence is actually privileged, the property owner's use of force will Not be
privileged.
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Deadly Force
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Property owner does not have right to use deadly force.
(Katko v. Briney)
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Except: if property owner believes that the intruder will cause death or
serious bodily harm
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Expulsion Injures Intruder
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Property owner may not eject intruder if this is likely to cause serious injury
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upon another's land may be justified to preserve life or property from being
destroyed. If the person turns you away, they are responsible for damages that
occur thereafter (Ploof v. Putnam, Family on boat, threatened by storm, moored to D's dock, D unmoored
boat and D's boat damaged)
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Mechanical Devices
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(Barbed wire, watch dogs, spring guns, etc)
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Privileged to use such devices only if...
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Property owner would use similar degree of force if he were present and acting himself
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Devices can only be used to protect:
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Against serious injury to the
inhabitants, or
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Against breaking and entering felonies in a dwelling (not
burglaries)
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Intent
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Property owner's intent is irrelevant
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is privileged to use only force reasonably necessary to defend one's property. Deadly force generally can only be used in defense of one's dwelling where the
invasion appears to threaten death or serious bodily harm. (Katko v. Briney)
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Posted warning does not necessarily prevent
liability
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Necessity
| D is privileged to harm the property interest of P if necessary to prevent great harm to third
persons or to the D himself.
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Necessity prevails over property.
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Ploof v. Putnam
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Public Necessity
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Is a complete defense: D not liable
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Occurs whenever interference with the land or chattel of another is
necessary, or reasonably appears necessary, to prevent disaster to the community
or a substantial number of people.
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Apparent Necessity - necessity has to only appear to be reasonably
necessary.
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Private Necessity
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An incomplete privilege: you may still have to pay
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Where the act is solely to benefit a person, property, or to the person or
property of a third person to prevent destruction or serious injury.
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The act is Qualified - the actor must pay for any injury he causes.
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Complete Defense when there are no damages.
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Limited Privilege when there are
actual damages.
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Storm sets in and D's boat damages Dock (Vincent v. Lake Erie Transportation
Co)
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D has right to use property, but must pay for the damages
because D's act was intentional.
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Private Necessity can apply in less drastic situations than Public. In
determining whether a privilege exists, the harm to the P's property
interest must be weighed against the severity & likelihood of the danger
that D seeks to avoid. (B < PL)
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