California Civil Jury Instructions (CACI)

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 consent].

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 Bender)

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 Bender)

1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18—12:19