PRIVILEGES Defendant bears burden of proof.
CONSENT Types of Consent: 1. EXPLICIT CONSENT
If plaintiff signed a waiver, then explicit consent.
2. APPARENT CONSENT
If plaintiff’s overt acts and manifestation of feelings would indicate consent to a reasonable person in the defendant’s shoes, then defendant was justified in his act. ---O’Brien v. Cunard S.S. Co. 1891: Plaintiff received vaccination on ship which caused ulceration and bleeding; alleged assault, but not allowed recovery because she stuck her arm out and received the shot without protest, after informing doctor she had already been vaccinated. If intentional conflict falls within expected contact of plaintiff, there is no liability. ---Hackbart v. Cincinnati Bengels 1979: Plaintiff struck intentionally in back of neck by another player in NFL game; no recovery unless there is intent to act outside the rule or custom of the game.
3. IMPLIED CONSENT
Consent of patients are implied when patient is unable to give consent, there is a risk of serious bodily harm if tx is delayed, a reasonable person would consent to tx under circumstances, and particular patient would consent to tx under circumstances. ---Mohr v. Williams 1905: Plaintiff agreed to surgery on right ear; after put under anesthesia, MD finds left ear needs work, so he fixes it at no harm to patient. Patient charges assault for breach of personal autonomy. Best argument of MD: consent implied because of great risk in pulling patient out of anesthesia to ask consent and then put back under.
PRIVILEGES Defendant bears burden of proof.
FACTORS WHICH NEGATE CONSENT: * FRAUD – explicit misrepresentation, implied misrepresentation, or mistake made
by plaintiff to knowledge of defendant.
* INCAPACITY—age (A child can consent to a contact of international tort, if able
to appreciate the nature or consequences of the act.) or mental capacity (Liability only if able to understand nature and probable consequences).
* DURESS * VIOLATION OF POSITIVE LAW – Defendant’s act must be lawful for consent to
be valid defense. ---Hart v. Geysel 1930: Plaintiff is administrator of estate of decedent who was killed by blow in an illegal prize fight. Majority view: When parties engage in mutual combat in anger, each is civilly liable to other for any injury inflicted during fight—consent is no defense. Minority view: When parties engage in mutual combat in anger, act of each is unlawful and relief for injury is denied unless as a result of excessive force. Court holds minority view. ---Restatement view: Plaintiff’s consent will be nullified if defendant’s conduct violated a criminal statute designed to protect a class of persons to whom the plaintiff belongs.