Intentional torts: intent and consent

Question 1

Tortious intent

Answer 1

The defendant must intend to commit a tort in order to satisfy the requirements of an intentional tort.

Transferred intent does not apply when, e.g., two people playing a sport (consent being a defense to tort) accidentally cause contact with a third person. The conduct would otherwise be tortious conduct had the people intended the offensive conduct.

Question 2

Transferred intent

Answer 2

Transferred intent applies to satisfy the intent requirement when a person commits:

(1) A different intentional tort against the same person she intended to harm;
(2) The same intentional tort against a different person; or
(3) A different intentional tort against a different person.

Question 3

Transferred intent: consent defense

Answer 3

Transferred intent does not apply when, for example, two people playing a sport—and consent being a defense to an intentional tort—accidentally cause contact with a third person.

But the conduct would otherwise have been tortious conduct had the people intended the offensive conduct.

Question 4

Express consent

Answer 4

Express consent exists when the plaintiff, through words or actions, manifests willingness to submit to the defendant’s conduct.

Question 5

Express consent: exceptions

Answer 5

Express consent does not provide a defense if:

(1) The defendant’s conduct exceeds the scope of the consent;
(2) Consent was by mistake, and the defendant either:

(a) Caused the mistake; or
(b) Knew of the mistake and took advantage of it;

(3) Consent was by fraud and went to an essential—i.e., not collateral—matter; or
(4) The plaintiff lacked capacity to consent—e.g., because of youth, intoxication, or incompetency.

Question 6

Implied consent: emergencies

Answer 6

There is a presumption that a person in need of rescuing would allow a rescuer to touch her absent explicit consent.

Question 7

Implied consent: athletic contests

Answer 7

Participants in athletic contests impliedly consent to any resulting injuries, unless:

(1) They result from recklessness; or
(2) They result from conduct falling outside of the scope of the sport.

Question 8

Implied consent: mutual combat

Answer 8

Mutual combatants are deemed to have impliedly consented to tortious conduct.