Battery: Consent In General Flashcards
Is consent a question of subjectiveness or objectiveness? (Feldman)
The question is: “Did this plaintiff consent to this contact?” It is subjective, not objective.
Can we use someone’s action to infer consent? (Feldman)
Yes. O’Brien teaches us that “consent” is a matter of external manifestation: “If the plaintiff’s behavior was such as to indicate consent on her part, [the physician] was justified in his act. In determining whether she consented, he could be guided only by her overt acts and the manifestation of her feelings.” Objective criteria.
What are the pros of using objective criteria to determine consent? (Feldman)
Doing so makes consent a public rather than private
matter.
Ex ante, external indicia of consent protect the liberty of prospective “injurers” because they are easier for strangers to identify and apply as compared to subjective criteria. Ex post, external criteria facilitate the application of law by judges and juries.
What are the cons of using objective criteria to determine consent? (Feldman)
The principal weakness is they don’t provide the robust protection that subjective conceptions do. When the subject’s own understanding of whether or not they consented varies from society’s understanding, society’s understanding trumps. This puts individual freedom at the mercy of differing views of
others (see Kirschbaum).
If someone participates in a game, are they showing consent to battery? (Feldman)
Markley shows that consent can be given not only to specified contact (like the vaccination in O’Brien) but also through participation in an enterprise (such as a game) that encompasses harmful or offensive contact.
Can someone consent to rules than can get them killed? (Feldman)
Compare McAdams. The deceased victim had consented to a boxing match, and hence to the blow that killed him. He had not specifically consented to being struck by a fatal blow, but consent is established because the blow that killed him was permitted by the rules or norms of the enterprise (the boxing match).
How can there be a battery claim during an established game where the participants consented? (Feldman)
In Hackbart, the court said: “[i]t is highly questionable
whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this.” Hackbart involved conduct that served a purpose (pure retaliation) that had no legitimate place in the game.
If someone is unconscious, are they allowed to sue someone based on an act that happened when they were unconscious? (E&E)
Yes. If the person would have rejected if they were given the choice, they can sue.
Is offensiveness judged at the time or in retrospect? (E&E)
It is judged at the time. If a person would have consented to an act at the time and then later would not have, they cannot sue.
