Battery Flashcards
3 elements of Battery
- Intent
- Harmful or offensive contact
- Lack of consent
Actual Consent
The consent that matters to the tort of battery is the actual consent of the affected subject. It is subjective not objective. However, consent can be interpreted by overt acts and the manifestation of feelings. An objective criteria is used to asses a subjective phenomenon.
Consent to an enterprise
Consent can be given not only to specific contact but also through participation in an enterprise that encompasses harmful or offensive contact. For example, in the McAdams case, the deceased victim had consented to a boxing match and hence the fatal blow that killed him.
Consent to Illegal Acts
One cannot consent to acts that are illegal. Examples of this are:
1. the plaintiff, being a minor, is not capable of consenting
2. The defendant has obtained consent wrongly by an appalling abuse of his position of authority and trust - by breach of his duty
3. The conduct is profoundly harmful to the plaintiff.
Modern Rule for Consent to Illegal Acts (third restatement of torts)
A person’s actual consent is legally effective even if the conduct consented to is a crime. However, the person’s actual consent is not legally effective if the conduct is made criminal in order to protect a class of persons without regard to their actual consent and if the person is a member of that class.
Consent Wrongly Procured
Consent to an otherwise harmful or offensive contact can be vibrated if the consent is wrongly procured.
Consent Wrongly Procured (Restatement Modern Rule)
A person does not actually consent to the actor’s conduct if any of the following circumstances exist:
1. The person gives consent because of a substantial mistake concerning either the nature of the invasion of the person’s interests, the extent of expected harm, or the actor’s purpose in engaging in the conduct
2. The actor knows of the mistake of causes the mistake by affirmative misrepresentation or fraud.
Medical Consent (specific consent)
An older traditional rule stated in the Mohr case: Plaintiff must consent to the specific medical treatment provided and a medical professional may be liable for anything done that is not specifically consented to.
Medical Consent (General Consent)
This is the modern rule that the consent - in the absence of proof to the contrary - will be construed as general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of his sound professional judgment, determines that correct surgical procedure dictates and requires such an extension of the operation originally contemplated.
Conditional Medical Consent
Illustrated in the Ashcraft case, conditional consent enables patients to exercise detailed control over surgical procedures.
Self Defense
The initial victim may use force sufficient to repel the attack.
Self Defense Principle of Proportionality
The amount of force necessary to repel an attack will not be judged by a purely objective standard. It will be judges by asking how much force reasonably appeared necessary in light of “all the circumstances of the case” - even if that differs from the force actually required to repel an attack. An original victim who uses excessive force does not become an aggressor in all respects. Rather, the original victim becomes an aggressor only to the extent that the force used in self-defense was excessive.
Self Defense to Deadly Force
The size and strength of the party defending themself and the disparity between the defending party and the assailant are taken into account. Also even if the original aggressor has used deadly force, the original victim can only respond with deadly force if they have “no other possible, or at least probable, means of escaping.
The privilege to come to the aid of others
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Use of mechanical devices to inflict harm
“You cannot do indirectly what you cannot do directly” and what you can do directly is determined by the principle of proportionality, so the amount of force you may use to repel a trespasser depends on how wrongful the trespass is. (relates to Katko case where a spring gun was set up to shoot trespassers).
