Consent
Consent is the one defense the Nevada FLE tests in Torts.
18. Consent
Consent provides a defense to actions for battery, assault, trespass to land, or intentional infliction of emotional distress.
- If consent is established, it either negates intent (as when the contact intended was consented to and therefore was not offensive) or operates as a complete defense.
- Consent can be express or reasonably implied, as when the plaintiff has used words or conduct that a reasonable person would interpret as consent or when engaging in certain activities implies consent to conduct that otherwise could be tortious.
- Consent is invalid if given without capacity, such as by a child or a person with limited cognitive capacity.
- [Players who participate in a sport consent to ordinary risks typical within that sport and setting.]
- Consent is invalid if the action is beyond the scope of consent.
- Consent to great bodily injury or death is invalid.
Consent is the one Torts defense the FLE tests. Valid consent, express or reasonably implied, negates intent or is a complete defense, but it fails for lack of capacity, conduct beyond its scope, or great bodily injury or death.
Consent is the one defense the Nevada FLE tests in Torts. When it applies, it does one of two things. Either it negates the intent element, because a contact the plaintiff agreed to is not offensive in the first place, or it operates as a complete defense to what would otherwise be a battery, an assault, a trespass to land, or IIED. Either way, valid consent means the plaintiff loses.
The first thing to see is that consent does not have to be spoken or written. It can be express, like signing a surgical consent form, but it can also be reasonably implied from words or conduct that a reasonable person would read as agreement, or from the act of joining an activity that carries its own ordinary contacts. Step onto a crowded train, you have impliedly agreed to the incidental jostling. Step onto a sports field, you have agreed to the ordinary risks typical of that sport and setting.
Now the limits, because most questions live here. Consent fails in three situations.
- 1No capacity: a young child or a person with limited cognitive capacity cannot give valid consent.
- 2Beyond the scope: the plaintiff consented to one thing and the defendant did another, so the extra conduct was never consented to at all.
- 3The act involves great bodily injury or death: consent to that is invalid, full stop.
So the move on every consent question is to ask whether there was consent, then test it against those three failure points.
Joining a sport is not blanket consent. A player consents only to the ordinary risks typical of that sport and setting, not to deliberate conduct outside ordinary play.
"Express or reasonably implied." Consent need not be spoken.
Words, conduct a reasonable person reads as agreement, or simply joining an activity with its own ordinary contacts (a crowded train, a sport) all count.
Three ways consent dies, the "csg" check: Capacity (a child or limited cognitive capacity cannot consent), Scope (conduct beyond what was agreed to is unconsented), Great bodily injury or death (consent to it is invalid).
Sports cabin: a player consents only to the ordinary risks typical of that sport and setting, not to whatever happens on the field.
Valid consent (capacity + within scope + not great bodily harm) wins for the defendant; fail any one and the consent does not protect the conduct that broke it.
Two recreational-league players agree to a full-contact hockey game. During an ordinary scramble for the puck, one player checks the other into the boards, a hard but routine hit, and the checked player is bruised. He sues for battery.
After the whistle, with play stopped, the same player skates over and deliberately swings his stick at the other player's head, fracturing his skull.
An option treats joining a sport or activity as blanket consent: 'consents to every contact on the field' or 'any contact in a game is consented to.'
Participation implies consent only to the ordinary risks typical of that sport and setting, not to deliberate conduct outside ordinary play.An option denies the defense because the plaintiff never said or signed anything, demanding express consent.
Consent can be express OR reasonably implied from words, conduct, or participation in an activity.An option treats a child's or a cognitively limited person's apparent agreement ('nodded,' 'said yes,' 'went along') as valid consent.
Consent given without capacity, such as by a child or a person with limited cognitive capacity, is invalid.A sympathetic, true fact (the plaintiff's initial agreement, the defendant's good motive) is offered to excuse conduct that went beyond the scope or caused great bodily injury.
Conduct beyond the scope of consent was never consented to, and consent to great bodily injury or death is invalid regardless of any agreement.the stem gives you a contact, threat, entry, or distress that looks like an intentional tort, plus some signal that the plaintiff agreed, went along, joined in, or participated.
The instant you see agreement or participation, switch from elements to the consent defense and run the three failure checks.
capacity: is the plaintiff a child or someone with limited cognitive capacity?
If so, the apparent consent is invalid.
scope: did the defendant do exactly what was consented to, or something extra or different?
Conduct beyond the agreement is unconsented.
magnitude: did the conduct involve great bodily injury or death?
Consent to that is invalid.
Watch especially for sports facts, where the consent is real but cabined to the ordinary risks of the sport, and for an option that overstates the agreement into blanket consent.
A recreational soccer player joined a full-contact adult league. During an ordinary play, an opposing player slid in to win the ball and, in the course of the routine slide tackle, made hard contact with the first player's shin, leaving a bruise. Such tackles are a normal part of how the game is played. The bruised player sued the opposing player for battery.
Is the bruised player likely to prevail on the battery claim?
A customer at a tattoo studio agreed to let an artist tattoo a small design on her shoulder and signed a form consenting to that tattoo. While the customer was seated, the artist decided the design would look better larger and, without asking, extended the tattoo well down the customer's arm. The arm work was not part of what the customer had agreed to. The customer sued the artist for battery.
Is the customer likely to prevail on the battery claim for the arm tattoo?
An adult with a significant cognitive disability that left him unable to understand the nature of medical procedures was approached by a researcher who wanted to draw his blood for a study. The researcher explained nothing meaningful and simply asked, and the man nodded and held out his arm. The researcher then drew his blood. A guardian later sued the researcher for battery on the man's behalf.
Is the claim against the researcher likely to succeed?
Two men settling a personal dispute agreed to a bare-knuckle fistfight with no rules, each freely telling the other to go all out. During the fight one man punched the other so forcefully that he shattered the man's jaw and caused permanent damage. The injured man sued the other for battery, and the puncher pointed out that the injured man had agreed to the fight.
Is the injured man likely to prevail on the battery claim?