Flashcards in Page 7 Deck (46):
What are the Three different types of consent?
- Express consent
- implied consent
- consent as a matter of law
What is consent?
When a P gives permission that is objectively manifested, making otherwise tortious behavior of the defendant privileged, and therefore defendant is not liable
Is express consent?
Words or pictures or gestures where plaintiff affirmatively communicates permission for defendant to act
What is implied consent?
Under the circumstances, A reasonable person would interpret plaintiff's conduct as permission to act
If you don't object to a vaccination, what have you given?
Your implied consent
When you play sports you have impliedly consented to what?
Normal contact by other players
If you Get on a busy subway, you have impliedly consented to what?
Consent as a matter of law?
Law provides consent to serve the purpose of presuming what most people in society want or can be implied from community custom
Example of consent as a matter of law?
Emergency medical care
Example of consent being implied from community custom?
People usually walk across each other's grass to knock on doors
If the community custom is to walk across each other's grass to knock on each other's doors, how can you negate your consent?
By putting up a sign, otherwise there is no trespass
If you Tell someone they have permission to come onto your land, even though you really mean no, do they have the defense of consent?
Yes, because you objectively manifested your consent, so unless they knew you were secretly not agree, then you consented
When does matter of law consent apply?
- P is unconscious/unable to give consent
- immediate decision is necessary
- no reason to think P wouldn't consent
- reasonable person in plaintiffs position would consent
What are The different exceptions that invalidate consent?
Mistake, incapacity beyond scope, medical malpractice, fraud, duress, Illegality
Examples of people that do not have the capacity to consent?
Children, Teenagers, insane people, drunk people
If you procure someone's consent when you don't know they are incapacitated, and there was no reasonable way to know, is their consent invalidated?
How does an action beyond the scope invalidate consent?
If The defendant's conduct substantially exceeds in degree or nature the scope of the plaintiff's consent, the defendant is liable
Example of consent being invalidated because the action went beyond the scope?
Agreeing to play football, but not to be bitten
If you consent to play a contact sport, what are you consenting to?
The level of physical contact normally expected from that activity
How Can medical malpractice invalidate consent?
A medical patient's consent is not effective if the doctor failed to inform the patient of the risks, or the alternatives, or the consequences of not getting treatment
How can medical malpractice be excused?
If an emergency came up that necessitated treatment, the Doctor reasonably thought it was in the patient's best interest not to be informed
If a Dr. performs surgery without consent, but the plaintiff isn't hurt, is that still a battery?
Yes, because it was the offensive touching that wasn't consented to
How Can fraud invalidate consent?
If the consent is induced by fraudulently misrepresenting an essential aspect of the interaction
If the fraud is about something that doesn't affect the outcome, does that negate consent?
No (misstating the brand of pizza)
How Can duress invalidate?
Consent is gotten under physical threat of imminent harm, or false assertion of unlawful authority
Can putting economic Pressure on someone invalidate their consent?
How can illegality invalidate consent?
Consent is not effective when the act is also a crime
- majority: can't consent to a criminal act
- minority: can consent to a criminal act but just for tort liability
How can consent be revoked?
Can happen at any time by communicating it to the other person
If your chattel is on the plaintiff's land because he tortiously dispossessed you of it, then you have a complete privilege to do what?
To enter the land to retake possession as long as you make a demand for permission to enter and enter in a reasonable time and enter in a reasonable way
When don't you have to make a demand for permission to enter to someone's land to recapture your chattel?
It would be futile or subject your property to harm
If You are entering someone's land under a privilege to take back possession of your chattel that has been tortiously dispossessed, is that privilege complete?
Yes, you can't be liable for any harm done in reasonable exercise of the privilege
Does your privilege to enter another's land to retake possession of something tortuously dispossessed of you still apply if you make a mistake?
No, so you must be sure
If Your chattel is on someone else's land because of your own fault, do you have a privilege to go on the property to recover it?
No, you must bring an action to redeem it
If an act of God occurs, do you have the privilege to enter someone else's property to recapture your chattel?
Yes, but it is incomplete, see you would be liable for any actual damage done in the process, but not for damage caused by your chattel being dispossessed there
If a wind storm caused a tower on your property to crash into your neighbor's yard, and while you were removing the tower you trample their flowers, are you liable?
Yes, For the flowers, because this is an incomplete privilege, but not for the damage the tower did
What are the three things you must do in order to retake your chattel that ended up on another's property because of an act of God?
Act at a reasonable time, in a reasonable way, and request permission to enter
If you're traveling on Publix Road, and the road becomes impassible, do you have a privilege to enter neighboring lands to continue your journey?
Yes you have an incomplete privilege, and the entry must be reasonably necessary considering the availability of other routes, the urgency of your business, whether you could have removed the obstruction yourself through reasonable efforts
If you are the cause of an obstruction on a public road, do you have a privilege to enter neighboring lands to continue your journey?
What does a complete defense mean?
You're not liable for anything
What is an incomplete defense?
You are liable for the harm you commit while exercising your privilege
The privilege to invade someone's land or chattels as a private necessity supersedes what?
The privilege of the possessor to use reasonable force to protect his property from invasion, so any force he uses is wrongful he is liable for the harm
If someone tries to enter your land as a matter of private necessity, and you deny them entry, what are you liable for?
Harm you cause the person as a result of being denied entry
What is the privilege of abatement for nuisance?
You're completely alleged to invade the land or chattels of another to abate a private nuisance, so long as you were The possessor affected by the nuisance, you made a demand of abatement first, and entered at a reasonable time and in a reasonable way
If resistance happens to an abatement, what must you do?
Withdraw and seek judicial relief
What are affirmative defenses?
D has the burden of pleading and proving them, they supply a legal reason or justification for his actions and render them non-tortious