Consent: Does P have legal capacity? Only people with legal capacity can consent to tortious invasions.
- Where people lack capacity, they can’t give valid consent.
- Children have capacity to consent to things that are age appropriate. two 13-year-olds can consent to wrestle with each other.
- Children cannot consent to things beyond their knowledge and understanding (i.e. surgery, or sex)
- Express consent: words spoken or written in quotation marks that give Δ the right to behave in the challenged way.
- Exception: ignored in cases of fraud or duress.
- EX: One night stand, STD, HIV cases.
- Custom or usage: If a P goes to a place or engages in an activity, where certain minor tortious activity is routine, there is consent.
- EX: subway at rush hour à offensive shoving is battery, but you consented by getting onto subway.
- EX: sports. Basketball. Shoving on basketball court. Rules of the game are not part of your legal analysis. Is the shoving customary routine in the rules of the game?
- Based on D’s reasonable interpretation on P’s overt conduct:
- The subjective thoughts of the Π are never considered in your analysis. Ignore what’s going on in Π’s head.
- All consent has scope. If Δ exceeds scope of consent, it’s a tort.