O’Brien
v. Cunard S.S. Co.
Supreme
Judicial Court of Massachusetts, 1891.
154
Prosser,
p. 88-89
Facts: A passenger on a steamship
got vaccinated. Subsequently, she
suffered injuries that she claimed were related to the vaccination. She sued the steamship company for assault and
negligence. The trial court gave a
directed verdict for the defendants, and the plaintiff appealed.
Issue: Can a defendant be held
liable for an intentional tort if the plaintiff consented to the contact?
Rule: If the plaintiff’s behavior
indicated that she consented, then the physician’s act was justified.
Analysis: The court says that the
doctor was right to assume that he had the right to vaccinate unless there was
a specific objection. The court reasons
that since the woman never objected to the vaccination, the doctor could not have
known that she didn’t want to be vaccinated.
Conclusion: The court upheld the trial
court’s ruling for a directed verdict for the defendant.
Notes
and Questions
1. I think it is
impossible to imply consent for getting punched in the nose. In the present case, there are a lot of
circumstances to support implied consent, while in the case of getting punched
in the nose, there are none, unless you are engaged in a
getting-punched-in-the-nose contest.
2. If the woman
is his fiancée, I think it is typical, at least in our culture, that consent to
kiss (if nothing else) is implied. If it’s
the first date, I think evidence would have to be presented to the jury in
regard to the events of the evening and the state of mind of the man and
woman. For example, if he had already
kissed her with consent 50 times that night, it would be hard to imagine that
consent did not exist for kiss #51. On
the other hand, if the date had just started, or hadn’t gone so well, battery
might be more likely to lie. In the case
of the stranger, battery would be easier to prove, however, it would be most
surprising if the plaintiff did not object in any way.
3. I would agree
that in order to gain consent, you must ask for it in a way that the plaintiff
understands.