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Please read the following case O’Brien v. Cunard S.S. Co. S…

Please read the following case O’Brien v. Cunard S.S. Co. Supreme Judicial Court of Massachusetts, 1891. 154 Mass. 272, 28 N.E. 266. Tort, for a [battery], and for negligently vaccinating the plaintiff, who was a steerage passenger on the defendant’s steamship. The trial court directed a verdict for the defendant, and the plaintiff brings exceptions. [Plaintiff alleged that she suffered ulceration at the site and blistering all over her body due either to contamination of the vaccine or of the vaccination site. There was conflicting medical expert testimony as to the cause of her injuries.] KNOWLTON, J. * * To sustain the first count, which was for an alleged [battery], the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon’s conduct must be considered in connection with the surrounding circumstances. If the plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of emigrants, to see that they are protected from small-pox by vaccination, and that only those persons who hold a certificate from the medical officer of the steam-ship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship’s medical officer to vaccinate such as needed vaccination, were posted about the ship in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff’s testimony, which, in this particular, is undisputed, it appears that about 200 women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark;” that she did not hear him say anything to any of them; that upon being passed by they each received a card, and went on deck; that when her turn came she showed him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before, and it left no mark; “that he then said nothing; that he should vaccinate her again;” that she held up her arm to be vaccinated; that no one touched her; that she did not tell him she did not want to be vaccinated; and that she took the ticket which he gave her, certifying that he had vaccinated her, and used it at quarantine.  She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that purpose. Viewing his conduct in the light of the surrounding circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case is correct. Exceptions overruled.

Please Read the Following Case: Hackbart v. Cincinnati Beng…

Please Read the Following Case: Hackbart v. Cincinnati Bengals, Inc. United States Court of Appeals, Tenth Circuit, 1979. 601 F.2d 516. WILLIAM E. DOYLE, Circuit Judge. The question in this case is whether in a regular season professional football game an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game. The injury occurred in the course of a game between the Denver Broncos and the Cincinnati Bengals, which game was being played in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was the recipient of the injury and the Bengals’ offensive back, Charles “Booby” Clark, inflicted the blow which produced it. * * * The trial court’s finding was that Charles Clark, “acting out of anger and frustration, but without a specific intent to injure * * * stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiffs head and neck with sufficient force to cause both players to fall forward to the ground.” Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted. Clark testified at trial that his frustration was brought about by the fact that his team was losing the game. * * * Despite the fact that the defendant Charles Clark admitted that the blow which had been struck was not accidental, that it was intentionally administered, the trial court ruled as a matter of law that the game of professional football is basically a business which is violent in nature, and that the available sanctions are imposition of penalties and expulsion from the game. Notice was taken of the fact that many fouls are overlooked; that the game is played in an emotional and noisy environment; and that incidents such as that here complained of are not unusual. * * * [The] evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that: “All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.” Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above. The general customs of football do not approve the intentional punch-ing or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation. * * *  In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant’s liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated. * * * Reversed and remanded for a new trial.

Consider the following sample legal analysis of this questio…

Consider the following sample legal analysis of this question. In light of this model answer, briefly draft several sentences reflecting on the strengths and weaknesses of your analysis above.  Issue and Conclusion The issue is whether Brian can defeat Alex’s prima facie battery and IIED claims by establishing that Alex consented to the conduct. Brian has a plausible but ultimately weak defense.  Rules Consent is willingness in fact for conduct to occur, and it is a defense to all intentional torts. It may be manifested by words or by conduct, including inaction; if the plaintiff’s words or conduct are reasonably understood by another to be intended as consent, they are effective as consent even if the plaintiff was not actually willing. Consent must be particularized: to be effective, it must extend to the particular conduct alleged to be tortious, or to substantially the same conduct. Consent can be terminated at any time, and once terminated it is no longer effective.  Application Manifestations of consent. Brian has real facts to work with. Brian announced a “more daring act involving audience participation” before calling for a volunteer, and Alex then stepped forward on his own. He walked the length of the performance area to the board, held his arms out into a “T” when asked, and let Brian place a blindfold over his eyes. He never objected. After the first flaming knife struck the board above his shoulder, he remained standing, arms out, blindfold on. Viewed objectively, that is conduct a performer could reasonably understand as willingness to participate. Scope. The defense founders on particularization. When Alex stepped forward, the show he had been watching consisted of gymnastics and balancing tricks, and the only description of what came next was that it would be “more daring.” Critically, Brian did not announce the knife-throwing act — or that the knives would be aflame — until after he had positioned Alex against the board and blindfolded him. Every manifestation of willingness Brian relies on therefore occurred before Alex could know what he was agreeing to. Consenting to appear in an acrobat’s daring stunt is not consent to substantially the same conduct as having flaming knives thrown at one’s body. The scope problem is even sharper for the IIED claim. Whatever Alex agreed to, he plainly did not agree to being loudly mocked in front of several hundred people, warned that he “might get hit by the next flaming knife,” and made to listen, blindfolded, to a detailed account of what a flaming knife would do to his eye, his ear, and his heart. That conduct is not part of any knife-throwing act; it is a separate course of behavior directed at Alex personally, and no volunteering can be reasonably understood as consent to it. Termination. Alex’s “What was that!” and his whimpering are evidence of unwillingness, and Brian’s response — mocking him and telling him to hold still — shows Brian registered that Alex was frightened. Still, Brian’s strongest argument is that Alex never manifested withdrawal in a way that terminated consent before the second throw: he kept his arms out and left the blindfold on, which is the objective signal a performer would act on. A court could find that consent, if it ever existed, ran through the second knife and terminated only when Alex tore off the blindfold and ran. That would matter to a battery premised on the heat from the second knife, but it does not save the IIED claim, whose core is the taunting and threats that occurred after Alex had begun to express distress. Case Comparison O’Brien is the closest case and cuts both ways. There, a physician was not liable where the plaintiff stood in line with roughly 200 other immigrants and held up her arm to be vaccinated; her conduct, objectively viewed, manifested consent regardless of her private unwillingness. Brian will analogize: Alex likewise stepped forward, assumed the position asked of him, and never said no. The analogy breaks down in three ways. In O’Brien, the plaintiff had advance notice of exactly what was going to happen and could see it being done to those ahead of her; Alex was blindfolded before the act was described, and could see nothing. In O’Brien, the physician was processing hundreds of people and could not attend to any individual’s hesitation; Brian had one volunteer and the undivided attention of the crowd on him, so he was far better positioned to notice Alex’s distress — and in fact noticed it, since he mocked it. And the conduct in O’Brien was a beneficial vaccination, whereas throwing flaming knives at a person’s head is dangerous, which is reason to demand a clearer manifestation of willingness before treating silence as consent. Counter-Argument The best counter-argument is that Brian’s reading of Alex’s conduct was reasonable given what Brian could observe, and that several facts bearing on that are unknown. We do not know whether Alex heard Brian’s announcement about the flaming knives — it was made loudly, but to the crowd, and Alex was at the far end of the performance area. If Alex did hear it and then chose to keep standing there with his arms out and the blindfold on, his consent looks far better informed and the scope objection weakens considerably. Relatedly, we do not know what Alex saw or knew before volunteering: Brian is a well-known street performer, and if the knife act is a familiar part of his repertoire, a volunteer stepping forward for a “more daring” segment may be understood to accept it. We also do not know whether Brian could actually hear Alex’s whimpering over a crowd of several hundred — though his mocking suggests he could — or whether Alex said anything to Brian while walking to the board. Finally, Brian will press the point that Alex could simply have lowered his arms, removed the blindfold, and walked away between the throws, as he eventually did, and that a person who stays put after learning what the act involves has manifested consent to it. The response is that a blindfolded person who has just been told to hold still or risk being struck is in no position to treat continued stillness as a free choice.