O’Brien v. Cunard S.S. Co.

Supreme Judicial Court of Massachusetts, 1891.

154 Mass. 272, 28 N.E. 266.

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.


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