Consent - Persons

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Affirmative Defense:
A defense which the Defendant must prove. The Defendant must prove that the Plaintiff consented to his actions.

Express Consent:
Consent that is clearly and unmistakably stated.

Implied Consent:
Consent inferred from someone’s conduct rather than from his direct expressions.

Informed Consent:
A person’s agreement to allow something to happen made with full knowledge of the risks involved and the alternatives to his chosen course of action.

The plaintiff's consent to the defendants actions or conduct is a defense to a suit for any intentional tort.

There are two general types of consent that can be given; express consent and implied consent. Express consent is when the defendant actually says that he is willing to submit to the plaintiff's actions. Implied consent is inferred by the plaintiff's conduct. See O’Brien v. Cunard, 28 N.E. 266 (Mass. 1891). For example:

Paul willingly takes part in a tackle football game. Dave tackles Paul, and Paul suffers a knee injury. Dave is not liable because Paul implicitly consented to the contact by taking part in the game.

However, consent by the plaintiff does not give the defendant the right to do whatever he wants to the plaintiff because the contact that the defendant engages in with the plaintiff cannot go beyond what the plaintiff consented to. For example:

Paul willingly takes part in a tackle football game. Dave punches Paul in the face and breaks his nose. Dave is liable because Paul only consented to contact resulting from the football game. He did not consent to being punched.

Consent is likewise limited in scope in other contexts as consent applies only to batteries that are expressly or impliedly agreed to. For example:

Paul agrees to allow Dave, a doctor, to perform surgery to remove a rotted tooth in Paul’s mouth. While performing the surgery, Dave notices that Paul has a tumor on his tongue. Dave removes the tumor. Surprisingly enough, Dave is liable for battery here because, even though Dave’s action was beneficial to Paul, Paul did not consent to having the tumor removed.

Additionally, there are other types of consent that are invalid as well:

  1. Consent will be void if it is obtained by trickery or by fraudulent means. See Bartell v. State, 82 N.W. 142 (Wis. 1900).
  2. Consent will be void if it is given under duress (threats of physical force).
  3. Consent will also be void if it was given as a result of a mistake and the mistake was either:
    (a) caused by the defendant, or
    (b) The defendant was aware of the mistake and he did not alert the plaintiff.
  4. If the consent that the plaintiff gives allows the defendant to commit a criminal act, there is a split in the authority as to whether or not this consent is valid:
    (a) The majority view is that, if the criminal act does not breach the peace, the consent is valid. An example of such an act would be an illegal abortion. However, if the act breaches the peace (like, for example, a street fight) then the consent is void.
    (b) The minority view is that, even if the consent breaches the peace, it is still valid.

It is important to note that, even according to the minority view, the plaintiff’s consent is void if the plaintiff is a member of the class of persons that the law set out to protect. For example:

The State forbids boxing matches to take place unless they are sanctioned by the State Boxing Commission. Any fight that is sanctioned by the State Boxing Commission automatically provides medical insurance for the boxers and the state passes this statute to prevent people from boxing without adequate medical insurance. Paul consents to participate in an unsanctioned fight. Paul’s consent is void because he is a member of the class of persons the State is seeking to protect with this law. Thus, Paul can sue for injuries sustained in the match.

5. Lack of informed consent can also void otherwise valid consent. For example:

A patient consents to a medical procedure but is unaware of the side-effects that could arise from that procedure. Because doctors generally have a duty to inform their patients as to the side effects of medical procedures, the patient’s consent in this case is considered void. Therefore, if the patient suffers any side effects, he can sue the doctor for battery.

See Cobbs v. Grant, 8 Cal. 3d 229 (1972)

Finally, Consent to bodily contact can be implied as a matter of law if the contact is necessary to save the plaintiff's life. However, four elements must be present in order for the consent to be implied by law:

  1. The plaintiff is unconscious and unable to decide whether to grant or withhold consent.
  2. An immediate decision is required.
  3. There is no reason to believe that the plaintiff would withhold consent if he were conscious.
  4. A reasonable person in the plaintiff’s position would consent.