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O’Brien v. Cunard S.S. Co


    Citation. O’Brien v. Cunard S.S. Co., 154 Mass. 272, 28 N.E. 266, 1891 Mass. LEXIS 108 (Mass. 1891)

    Brief Fact Summary. Plaintiff was a passenger aboard one of Defendant’s ships. She was vaccinated while on the ship, and suffered from complications resulting in injury. She sued for assault and negligence.

    Synopsis of Rule of Law. When consent is used as a defense to an assault action, the totality of the circumstances must be considered, but only overt acts and outward manifestations may demonstrate such consent or lack thereof.


    Facts. Plaintiff was given a vaccination while aboard on of Defendant’s steamships. Plaintiff suffered blistering and ulceration thereafter, and alleged this was due to the vaccination. Plaintiff had presented herself to Defendant’s surgeon in the quarantine area and did not object when he indicated his intention to vaccinate her. Nevertheless, she sued for assault and negligence. The trial court directed a verdict for Defendant on the basis of consent.

    Issue. Did the trial court err in directing a verdict for Defendant on the basis of consent?

    Held. No. The judgment was affirmed. When one’s overt acts and outward manifestations of intent indicate consent to physical contact in light of the surrounding circumstances, the making of such physical contact is consensual and therefore lawful.

    Discussion. This case introduces the defense of consent into the law of torts. More importantly, it sets forth the proper analysis of a claim of consent. As the Court explains, such a defense will be analyzed according to the overt acts of the party attempting to defeat the defense, and will be considered in light of the surrounding circumstances. The defense of consent thus cannot be defeated on the basis of one’s unexpressed feelings or intentions. One must produce evidence to the effect that the other party had reason to know consent was not given.

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