California Civil Jury Instructions (CACI) (2017)

1303. Invalid Consent

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1303.Invalid Consent
[Name of plaintiff] claims that [his/her] consent [was obtained by fraud/
mistake/duress] [was obtained as a result of [his/her] incapacity] [or that
[name of defendant]’s conduct went beyond the scope of [his/her] limited
If [name of plaintiff] proves that [his/her] consent was [insert ground for
vitiating consent, e.g., “obtained by fraud,” “exceeded”], then you must
find that [he/she] did not consent.
New September 2003
Directions for Use
For instructions on fraud, mistake, and duress, see other instructions in the
Contracts and Fraud or Deceit series.
Sources and Authority
• Restatement Second of Torts, section 892B provides:
(1) Except as stated in subsection (2), consent to conduct of another
is effective for all consequences of the conduct and for the invasion
of any interests resulting from it.
(2) If the person consenting to the conduct of another is induced to
consent by a substantial mistake concerning the nature of the
invasion of his interests or the extent of the harm to be expected
from it and the mistake is known to the other or is induced by the
other’s misrepresentation, the consent is not effective for the
unexpected invasion or harm.
(3) Consent is not effective if it is given under duress.
• Consent may be invalidated if the act exceeds the scope of the consent or if the
consent is fraudulently induced. (Barbara A. v. John G. (1983) 145 Cal.App.3d
369, 375 [193 Cal.Rptr. 422].)
• Liability may be found where a physician “intentionally deceive[s] another into
submitting to otherwise offensive touching to achieve a nontherapeutic purpose
known only to the physician.” (Rains v. Superior Court (1984) 150 Cal.App.3d
933, 941 [198 Cal.Rptr. 249].)
• “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 (10th ed. 2005) Torts, §§ 386–416
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18–12:19