California Civil Jury Instructions (CACI)
1302. Consent Explained
A plaintiff may express consent by words or acts that are reasonably understood by another person as consent.
A plaintiff may also express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent.
Directions for Use
See CACI No. 1303, Invalid Consent, if there is an issue concerning the validity of plaintiff’s consent.
Sources and Authority
- Restatement Second of Torts, section 892 provides:
(1) 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.
(2) 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.
- Civil Code section 3515 provides: “He who consents to an act is not wronged by it.”
- “The element of lack of consent to the particular contact is an essential element of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].)
- “Consent to an act, otherwise a battery, normally vitiates the wrong.” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 375 [193 Cal.Rptr. 422].)
- “As a general rule, one who consents to a touching cannot recover in an action for battery… However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609—610 [278 Cal.Rptr. 900].)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 386—416
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18—12:19