This is an extract of our Privileges And Defenses document, which we sell as part of our Tort Law Outlines collection written by the top tier of Oklahoma City University School Of Law students.
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Privileges/Defenses Sometimes a defendant may escape liability for what would otherwise be a valid case for the plaintiff. The defenses provided by these circumstances are called: Privileges
Conduct which would normally be prohibited but, under the circumstances, is permitted. Privileges come into play after the plaintiff has shown a prima facie entitlement at the first stage. The defendant bears the burden of both producing proof to support the privilege/defense and persuading the trier of fact of its validity. The exception to the rule is Consent.
1. Consent Operates to eliminate the plaintiff's prima facie case, rather than operating as a logically separate affirmative defense.
One consents to the acts of another, or to the consequences of those acts, if one is subjectively willing for that conduct or those consequences to occur.
Volenti non fit injuria: to one who consents, no wrong is done.
Meaning of Consent=Restatement 2nd SS892
a) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. b) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. In sports: Implied consent only where not conduct that is so "reckless" as to be totally outside the range of the ordinary activity involved in the sport. (stomping on heads prob not okay). Informed Consent: As for contracts, courts look at whether the contract is merely one factor to consider in determining whether the patients consent to treatment was truly informed. (medical consent forms)
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