Restatement of the Law, Torts: Intentional Torts to Persons

The following entry contains the Black Letter and Comments b, c, and d of Tentative Draft No. 4, Section 12. Categories of Consent That Preclude Liability.

The full draft contains Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§ 12. Categories of Consent That Preclude Liability

          An actor is not liable to another for the actor’s otherwise tortious intentional conduct if the other gives legally effective consent to that conduct. Consent is legally effective, and thus precludes liability, if the criteria of any of the following categories of consent are satisfied:

                    (a) Actual consent, as provided in §§ 13, 14, and 15;
                    (b) Apparent consent, as provided in § 16(a);
                    (c) Presumed consent, as provided in § 16(b); or
                    (d) Emergency doctrine, as provided in § 17.

Comment:

          b. Categories of consent that preclude liability. Tort law employs several distinct conceptions of consent. Satisfaction of the criteria of any of these categories precludes liability: actual consent (§§ 13, 14, and 15), apparent consent (§ 16(a)), presumed consent (§ 16(b)), and the emergency doctrine (§ 17). Also, even if a person lacks capacity to consent, another may have the legal authority to consent on behalf of the first person. Such “substitute” consent also precludes liability. See § 15(a).

          c. The significance of consent. As numerous courts have explained, Volenti non fit injuria: no legal injury is done to a person who consents. There is nothing wrongful about a consensual intentional contact that causes harm or offense, about consensual intentional conduct causing anticipation of such a contact, or about a consensual intentional confinement. Intentional tort doctrines identify conduct that, when nonconsensual, violates a person’s rights by improperly intruding upon his or her private domain of autonomy. At the same time, the legal doctrine of consent gives a person the power to allow the actor to cross the boundaries of that domain. The power to consent enlarges personal freedom, autonomy, and agency, while also facilitating mutually beneficial relationships and transactions between people.

           d. Problematic “implied consent” terminology. Many courts employ the terms “implied consent” for a variety of different types of consent that preclude liability. This phrase often refers to instances in which a person actually consents but does not express that consent explicitly, either in writing or orally. (This Restatement characterizes such instances as “inferred consent.” See § 13 and Comment c.) But “implied consent” also, and more problematically, sometimes refers to apparent consent, or to justifiable emergency action taken without the plaintiff’s consent, or to “implied-in-law” consent. Indeed, for some courts, this phrase seems to be the terminology of choice for any type of legally effective consent other than express actual consent. Precision of analysis is greatly improved if courts identify the particular doctrine or type of consent that is relevant in lieu of employing the broad and highly ambiguous category “implied consent.” By identifying the particular type of consent, courts are better able to apply the distinct criteria for that category.

          “Implied-in-law” or “constructive” consent is an especially troublesome category. Courts sometimes employ the category in a fictional sense, precluding liability even when the plaintiff actually objected to the conduct that he or she is deemed to have consented to. Clarity is better served if this category is not employed. If a particular type of case should not result in liability even in the face of the plaintiff’s objection, the wiser course is for a court to set aside the category of implied-in-law or constructive consent and, in its place, to specify another legal category that better explains such a result. For example, defenses such as self-defense, defense of property, and necessity justify precluding liability even if the plaintiff objects to the conduct of the defendant asserting the defense. Moreover, in a small category of battery cases, if the contact is minor and clearly socially justifiable, liability is properly precluded, but not because plaintiff “consents” in any genuine sense. See § 1, Comment h.

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Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Jennifer Morinigo

The American Law Institute

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