Consent

1.) Expressed or Implied Consent to an Act

1.) Expressed Consent To An Act i. Expressed Consent - Unquestionable permission through verbal communication or permission that is explicitly in writing. The permission is extremely clear, no ambiguous interpretation. 2.) Implied Consent To An Act i. Implied Consent - Implied by the conduct of the plaintiff, custom, or by law. a.) Apparent - the plaintiff, by conduct, has lead the defendant to reasonably believe that the plaintiff is willing to submit to the defendant's act. b.) Custom - When we can determine based off of relationships between parties to determine weather consent is established by custom. c.) Implied By Law - When there is reason to believe that a reasonable person would consent. • Plaintiff's consent may be implied by law to a bodily contact (e.g. surgery, emergency medical treatment) that is necessary to save ones life.

What are the six steps of analysis under consent?

1.) Expressed or Implied Consent to an Act 2.) Competency of Consenting Person 3.) Fraud or Duress Negate Consent 4.) The Act Must Not Exceed the Scope of the Consent 5.) Possible Exception to the General Rules: Illegal Acts 6.) Conduct v. Consequences

4.) The Act Must Not Exceed the Scope of the Consent

Act Exceeds The Scope of the Consent Given - there is no valid consent if the invasion goes beyond the limits of consent given.

2.) Competency of Consenting Person

Competency of Consenting Person - There is no valid consent if the plaintiff is known to be a person incapable of giving consent. People incompetent of giving consent include: infants, people who are intoxicated, minors (not at least 17 or 18 years or older), people who are not of sound mind (insane), etc.

6.) Conduct v. Consequences

Not sure

Consent

The plaintiff's consent to the defendant's conduct may be a defense to an intentional tort.

5.) Possible Exception to the General Rules: Illegal Acts

There is a split in authority on whether the plaintiff's consent is effective if the act consented to is a crime: 1.) Majority Rule: Consent to an illegal/criminal act is always invalid. One cannot consent to criminal/illegal acts. (Example: B said A could hit him. A hit B. A could not claim defense of consent for battery under majority rule. Under majority rule, A would be liable for battery) (Consent to an illegal/criminal act = Consent invalid = no consent = no defense = D liable for intentional tort) • Policy: To protect people from harm 2.) Minority Rule (Restatement of Torts): Plaintiffs consent to an illegal/criminal act is valid. Thus, Plaintiff cannot bring a later claim in court because he consented to the illegal act. (Example: When A & B engage in illegal acts (fighting) that they both consented to, neither one can bring claim for battery because both have consented to the act.) • Policy: Protection of the public. No reason is seen to invalidate the plaintiff's consent merely because the act consented to was a crime. Moreover, participants in criminal acts should be left in the status quo; if they are allowed to recover from each other, one might "profit" from her own wrongdoing.

3.) Fraud or Duress Negate Consent

i. Fraud - consent was obtained under false pretenses (falsity) (Example: If P allows D to take blood from P's arm because D represents that this is necessary to save P's life, and D knew that these representations were untrue, the consent is void.) ii. Duress - Threats to you or a third party that negate your autonomous decision making (e.g. Consent by forcing gun to plaintiffs head, blackmail, etc)