Consent as a Defense to Intentional Torts

Question 1

Consent

Answer 1

Plaintiff can consent to defendant’s conduct.

Majority view is that plaintiff cannot consent to criminal conduct.

Make sure to ask was there valid consent and did defendant stay within scope of consent?

Question 2

Express Consent

Answer 2

By words of the grantor

Exceptions: If consent was induced by either: a mistake defendant knew and took advantage of mistake; mistake is induced through fraud on an essential matter; obtained by duress other than by duress of future action or economic deprivation.

Question 3

Implied Consent

Answer 3

Apparent Consent: reasonable person would infer from conduct/custom and usage.

Consent implied by law: action is necessary to save a person’s life or some other important interest in person or property.

Question 4

Capacity

Answer 4

Infants, Incompetents and Drunk persons lack capacity.