Torts – Consent O’Brien v. Cunard S.S. Co. Facts: While on a ship Defendant was innoculated, with others onboard a ship, for small-pox, prior to landing in America (Queenstown to Boston). Defendant claims the ships surgeon did not have her consent. She claimed to have already been vaccinated previously but could produce certification of that fact. After she was again vaccinated, at the site of the shot, she began to ulcerate and blisters appeared over her body. Rule: If Pl consented to the unlawful or lawful act, which was harmful or offensive, there exists no actionable tort. Issue: Is voluntary submission an act of consent? Holding: Yes, (P) consented. Reasoning: The (P) can only be measured by here overt conduct and not any subjective feelings that she might have. Since she did not refrain from doing everything that all the other women did, she consented to the vaccine. Hackbart v. Cincinnati Bengals, Inc. Facts: (P) hit the (D) in the back of the neck with his forearm with enough force to cause them both to fall down. Both parties play in the NFL. Issues: Was the conduct of the (D) a social accepted wrong, despite being against the rules? Did the (P) assume the risk? Rules: All players are prohibited from striking on the head, face, or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands. Holding: Reversed and remanded. Ct. Rationale: Voluntarily participating in professional sports, where it is inherently dangerous, does not allow one player to strike another player out of frustration and anger. Contrary to the rules the defendant struck the PL. The DF’s liability is one of an evidentiary finding as to whether PL’s rights had been violated. Mohr v. Williams Facts: Pl consulted a physician about trouble with her right ear. That doctor found a disease of the right ear, and PL consented to an operation of the right ear. Def, while operating on the right determined that the right ear did not require surgery, but rather the left. He operated upon the left ear without the express consent of the PL. Issue: Whether consent to operate on one ear transfers to an operation of the other, without knowledge beforehand, so as to negate the tort of battery? Holding: No transfer. Procedure: Jury returned verdict for PL, Judge granted new trial claiming damages, $14,322, were excessive. PL/DF appeal. Affirmed. Rule: Patient must be consulted and consent given before a physician may operate. Unless the surgery is extended to benefit the welfare of the patient’s exigent circumstances. Ct Rationale: The surgery upon the left ear was not an emergency. After the surgery of the right ear, the authorized surgery, the doctor made an independent assessment of the left and proceeded to operate upon that ear. The doctor never determined that the disease within the left ear was of a magnitude to equate into an emergency. It was a not a technical assault, it was violent, wrongful, and unlawful. PL A: The PL never consented to an operation of the left ear, there was no emergency to do so. Def A: The PL consented to an operation of the right ear, she was continuously having trouble with her ears. Upon a determination, that only surgery could have unearthed, the right ear was trouble free, and the left ear’s disease may have rendered her deaf.