Consent
This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.
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Writing Template
Issue
I: The issue is whether Defendant may avoid liability for Plaintiff’s injuries under a theory of consent.
Analysis
R: The defendant may avoid liability if they can prove the plaintiff’s consent meets the criteria for (1) actual, (2) apparent, or (3) presumed consent or the criteria for the (4) emergency doctrine.
1. Actual (Explicit) Consent
R: To prove actual consent, the defendant must show that the plaintiff was willing to allow the defendant’s conduct to occur. This willingness may be expressly given through words or writing, or it may be inferred from the plaintiff’s conduct and the surrounding circumstances. However, actual consent is subject to limitations, including fraud, duress, incapacity, substantial mistake, or consent to illegal activities, which can render the consent ineffective.
A: Here, [if the facts contain support for one or more of the limitation types identify them].
a. [Identified Limitation Type]
R: [Insert rule for the identified method. See Confinement Types below.]
A: Here, [apply relevant rules to facts].
C: Therefore, Plaintiff [actually consented/did not actually consent] to Defendant’s conduct.
2. Apparent Consent
R: To prove apparent consent, the defendant must show that the defendant reasonably believed that the plaintiff had consented to the defendant’s conduct. The defendant’s belief is reasonable if the plaintiff’s conduct or the surrounding circumstances could reasonably be interpreted as consent by a reasonable person in the defendant’s position.
A: Here, [apply rule to facts].
C: Therefore, Plaintiff’s consent [was/was not] apparent.
3. Presumed (Implied) Consent
R: To prove presumed consent, the defendant must show that (1) the conduct was customary or justified under prevailing social norms in which actual or apparent consent is typically unnecessary, and (2) the defendant had no objective reason to believe that the plaintiff would have refused or objected to the conduct if actual consent had been sought. The defendant’s belief must be objectively reasonable based on the circumstances and any signals from the plaintiff.
A: Here, [apply rule to facts].
C: Therefore, Plaintiff’s consent [was/was not] apparent.
4. Emergency Doctrine
R: To prove that the emergency doctrine applies, the defendant must show that (1) conduct was aimed at preventing or mitigating an imminent risk to the plaintiff’s health or safety, and either (2a) the defendant reasonably believed that immediate action was necessary to prevent or reduce the risk, and that the benefits of acting substantially outweighed the plaintiff’s interest in withholding consent, or (2b) the situation required immediate action, and it was impracticable to obtain actual consent in time and the defendant had no reason to believe that the plaintiff would have refused consent if the circumstances had allowed for consultation.
A: Here, [apply rule to facts].
C: Therefore, Plaintiff’s conduct [was/was not] warranted by the emergency doctrine.
Conclusion
C: Therefore, Defendant may [avoid/not avoid] liability for Plaintiff’s injuries under a theory of consent.
Limitations of Actual Consent
a. Scope Limitation
R: A plaintiff’s actual consent extends only to conduct that is reasonably within the scope of the consent given and not substantially different in nature from what the plaintiff expressly permitted. Additionally, the plaintiff may impose limiting conditions on their consent or revoke consent at any time, as long as the revocation is effectively communicated before or during the defendant’s conduct.
b. Mistake Limitation
R: A plaintiff’s consent is valid even if the plaintiff makes a substantial mistake regarding the nature of the invasion of their interest, the extent of the expected harm, or the defendant’s purpose in engaging in the conduct, unless the defendant caused the mistake or knew or should have known about the plaintiff’s mistake and took advantage of it.
c. Duress Limitation
R: Consent given under duress is not valid if (1) the duress involves an immediate or imminent threat of harm and (2) the threat is of such a nature that it overcomes the plaintiff’s free will to act or refuse.
d. Capacity Limitation
R: An individual has the capacity to give valid consent if (1) they understand the nature, extent, and foreseeable consequences of the conduct to which they are consenting. However, a plaintiff’s capacity may be invalidated if (2) they are unable to comprehend due to youth, intoxication, mental illness, or intellectual incompetence. The determination of capacity focuses on whether the individual had the mental ability to make an informed decision at the time consent was given.
e. Crime Limitation
R: Jurisdictions are divided on whether a plaintiff can legally consent to conduct that constitutes a crime, with many jurisdictions holding that consent to criminal conduct is generally ineffective as a defense in tort law. However, in all jurisdictions, consent is not legally effective if the plaintiff is a member of a protected class that the law aims to safeguard, regardless of any express or implied consent by the plaintiff.
Usage Notes
JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.
The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.
The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.
The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.
Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.
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