Restatement 2d Torts § 892. Meaning Of Consent

Facts

(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.

Comment:
a. This Section is concerned only with the meaning of “consent,” as used throughout this Restatement. On the effect of consent on tort liability, see §§ 892A to 892D. “Consent” is used throughout with reference to conduct on the part of the actor that is intended to invade the interests of the one who consents. Consent to conduct that is merely negligent, creating an unreasonable risk of harm, is commonly called “assumption of risk.” It is dealt with in a separate chapter, Chapter 17A.

Other Sections involving the rules stated in this Section, and referring to them, are §§ 49 and 50.

b. Consent in fact. Consent means that the person concerned is in fact willing for the conduct of another to occur. Normally this willingness is manifested directly to the other by words or acts that are intended to indicate that it exists. It need not, however, be so manifested by words or by affirmative action. It may equally be manifested by silence or inaction, if the circumstances or other evidence indicate that the silence or inaction is intended to give consent. Even without a manifestation, consent may be proved by any competent evidence to exist in fact, and when so proved it is as effective as if manifested.

Illustration:

1. A informs his neighbor, B, that he is glad to have all of his neighbors make use of his swimming pool. C, another neighbor, without any knowledge of A's statement to B, enters the pool and enjoys himself. A brings action against C for trespass to land. On the basis of A's statement to B, it may be found that he has consented to C's entry and that C is not liable.

c. Apparent consent. Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other. This conduct is not merely evidence that consent in fact exists, to be weighed against a denial. It is a manifestation of apparent consent, which justifies the other in acting on the assumption that consent is given and is as effective to prevent liability in tort as if there were consent in fact. On the other hand, if a reasonable person would not understand from the words or conduct that consent is given, the other is not justified in acting upon the assumption that consent is given even though he honestly so believes; and there is then no apparent consent.

Illustrations:

2. A, driving along the highway, calls to B, asking permission to take a short cut through B's driveway. B says nothing, but waves his arm in a manner appearing to indicate that A is to go ahead. A does so. Even though B is in fact unwilling for A to use his driveway and intends his gesture as a denial of permission, A is justified in acting upon the apparent consent and is not liable for trespass.

3. A, a young man, is alone with B, a girl, in the moonlight. A proposes to kiss B. Although inwardly objecting, B says nothing and neither resists nor protests by any word or gesture. A kisses B. A is not liable to B.

4. In the course of a quarrel, A threatens to punch B in the nose. B says nothing but stands his ground. A punches B in the nose. A is not justified upon the basis of apparent consent.

The term, consent, as used in this and succeeding sections, is intended to include both consent in fact and apparent consent, unless otherwise indicated.

d. Custom. In determining whether conduct would be understood by a reasonable person as indicating consent, the customs of the community are to be taken into account. This is true particularly of silence or inaction. Thus if it is the custom in wooded or rural areas to permit the public to go hunting on private land or to fish in private lakes or streams, anyone who goes hunting or fishing may reasonably assume, in the absence of a posted notice or other manifestation to the contrary, that there is the customary consent to his entry upon private land to hunt or fish.