CACI No. 1302. Consent Explained

Judicial Council of California Civil Jury Instructions (2023 edition)

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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.
New September 2003
Directions for Use
See CACI No. 1303, Invalid Consent, if there is an issue concerning the validity of
plaintiff’s consent.
Sources and Authority
• Consent as Defense. Civil Code section 3515.
• “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].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 457-488
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)
California Civil Practice: Torts §§ 12:9, 12:18-12:19 (Thomson Reuters)
843

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