Private Law Theory

Abstract:
This article challenges the traditional view of consent as a binary issue. Because ‘lack of consent’ is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all-or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.

Twerski, Aaron and Farber, Nina, Extending Comparative Fault (June 8, 2016). Brooklyn Law Review, forthcoming; Brooklyn Law School, Legal Studies Paper No 457.

First posted 2016-06-14 15:23:17