Torts - Consent

Affirmative Defenses

• Defeats liability by asserting that D was privileged to act, consists of justifications rather then excuses

• Burden of proof rests on D

Consent

P cannot prevail on her claim because she assented to endure bodily contact, apprehension of contact, or confinement, can be communicated expressly or implicitly

Koffman v. Garnett

Rule of Law: A plaintiff may sue for battery upon being injured while playing an organized sport if the plaintiff did not expressly or implicitly agree to the harmful contact.
Facts: P was slapped by D unexpectedly, D was demonstrating tackle. No prior coach used physical force to instruct

Dissent: Would dismiss because participation in football implies consent to instructional contact

Objective Indicia of Consent

Bar the imposition on D only if on the basis on P’s conduct, he actually and reasonably believed that D had consented

Consent not a defense…

if the victim lacks the ability or judgment necessary to give meaningful consent, and reasonable person in the position of the tortfeasor would perceive this lack of capacity (youth, mental incompetence, other condition)

ineffective if defendant had reason to know consent was not freely given, mostly in situations with a position of power

if he secures the victim’s consent by coercion, misrepresentation or other forms of deceit

Consent

Consent is legally effective if it satisfies the requirements for:
i) Actual consent;

ii) Apparent consent; or

iii) Presumed consent; or

iv) The emergency doctrine

Restatement Third of Torts

Actual Consent

The plaintiff expressly consents to the defendant's otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts. Restatement (Third) of Torts

• Actual consent given while under duress is not valid.

• Actual consent given by a plaintiff due to a substantial mistake regarding the nature of the invasion of the plaintiff's interests, the extent of the expected harm, or the defendant's purpose in engaging in the conduct is nevertheless valid consent unless the defendant caused the mistake by affirmative misrepresentation or fraud or knew of the mistake

• A plaintiff’s lack of capacity due to youth, intoxication, or intellectual incompetence may negate the validity of her consent. However, an individual who appreciates the nature, extent, and potential consequences of the conduct has the capacity to consent to it

• A plaintiff's actual consent extends to conduct by the defendant that is not substantially different in nature from the conduct that the plaintiff is willing to permit.

Apparent Consent

A defendant is not liable for otherwise tortious intentional conduct if the defendant reasonably believes that the plaintiff actually consents to the conduct, even if the plaintiff does not.

Presumed consent

A defendant is not liable for otherwise tortious intentional conduct if:

i) Under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff's actual or apparent consent; and

ii) The defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff's consent.

Emergency Doctrine

Under the doctrine, a defendant is not liable for tortious intentional conduct with respect to the plaintiff if:

i) The purpose of the conduct is to prevent or reduce a risk to the life or health of the plaintiff;

ii) The defendant reasonably believes that:

a) Her conduct is necessary to prevent or reduce a risk to the life or health of the plaintiff that substantially outweighs the plaintiff's interest in avoiding the conduct;

b) Immediate action is necessary to prevent or reduce the risk before it is practicable for the defendant to obtain actual consent from the plaintiff or a person empowered to grant consent for the plaintiff; and

iii) The defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if there had been the opportunity to do so. Restatement (Third) of Torts