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O’Brien v. Cunard S.S. Co.

Citation. 154 Mass. 272, 28 N.E. 266
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Brief Fact Summary.

Plaintiff alleged that she was vaccinated against her will while she was a passenger aboard Defendant’s steamship. She brought suit against Defendant for assault and for negligently vaccinating her.

Synopsis of Rule of Law.

A person’s verbal and non-verbal conduct can be examined to determine whether they consented to the tortious contact, or whether their conduct could be understood as consent.


O’Brien was a passenger aboard Cunard S.S. Co.’s steamship, which was traveling from Queenstown to Boston. As a safeguard against the spread of smallpox, there were strict quarantine regulations for emigrants in Boston. Only a certificate from the steamship’s medical officer or a vaccination from a port physician could permit an emigrant’s entry into the city without having to quarantine. O’Brien joined an assembly of 200 women passengers waiting for their vaccinations. When it was her turn, O’Brien showed the surgeon her arm. He told her that she would need to be vaccinated. O’Brien replied that she had been vaccinated before. It was common for a person to have a scar, or mark, on their arm after receiving the smallpox vaccine. Since there was no mark, the surgeon stated that O’Brien would need to be vaccinated again. O’Brien, saying nothing, held her arm up to be vaccinated and accepted her certificate of vaccination to enter Boston. She sued Cunard S.S. Co. for assault and for negligently vaccinating her while she was a passenger aboard the steamship.


Whether a tort was committed when the plaintiff’s behavior was such as to indicate consent to the tortious conduct?


No. When a person impliedly consents to the tortfeasor‘s conduct, then the tortfeasor is not liable. Regardless of O’Brien’s unexpressed feelings at the time, she still held up her arm to receive the vaccine. The trial court’s directed verdict for the defendant was correct.


O’Brien’s conduct indicated that she impliedly consented to the vaccination. She was part of an assembly of 200 women who were availing themselves to the benefit of the vaccination services. She understood from conversations among the women that they were waiting in line for the vaccine. When it was her turn, she held her arm up to receive a vaccination. She did not tell the surgeon that she did not want to be vaccinated. In light of the surrounding circumstances, the surgeon’s conduct was lawful since O’Brien consented to the contact. Therefore, a privilege exists against O’Brien’s tort claims.

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