§6.3 Defense – Consent

The Case: Kline by Kline v. Jordan , 685 S.W.2d 295 (Tenn. Ct. App. 1984).

The Basic Facts: Parents alleged the doctor's examination of minor child was assault and battery.

The Bottom Line:

• "For a cause of action for assault and battery to arise, there must be an absence of consent. Ray v. Scheibert, [484 S.W.2d 63 (Tenn. Ct. App. 1972)]. Consent may appear from the circumstances, so that if there was some manifestation of consent upon which the defendant could reasonably rely, he would not be liable. As Prosser has stated, '[c]onsent to an act is simply willingness that it shall occur. Actual willingness, established by competent evidence, will prevent liability; and, if it can ever be proved, will no doubt do so even though the plaintiff has done nothing to manifest it to the defendant. But the converse is also true, that a manifestation of consent, upon which the defendant may reasonably rely, will be equally effective even though there is no willingness in fact. In our society we must perforce rely upon the overt words and acts of others, rather than upon their undisclosed minds. Consent may therefore be manifested by words. The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff's conduct. [W. Prosser, The Law of Torts, § 18 (4th ed. 1971)]." 685 S.W.2d at 295.

Other Sources of Note: Doe v. Mama Taori's Premium Pizza, LLC , No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. Apr. 5, 2001) (holding the consent is not effective to void liability if, "(1) the person giving consent lacked the necessary capacity, (2) the consent was coerced, (3) the person giving the consent was mistaken about the nature and quality of the act, or (4) the nature of the act was such that no person could consent to it … Incapacity to give consent may arise from age, intoxication, or mental incompetence.").

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